CRIMINOLOGY

DEFINITIONSCriminology is a combination of two Latin words:Crimen – crimeLogus or logy – science

It is the science or study of crime. It is concerned with the conduct of individuals which is prohibited by society and law. It is a socio-legal study which seeks to discover the causes of criminality and suggests appropriate remedies.

DEFINITIONS BY VARIOUS SCHOLARS

Edwin SutherlandCriminology is the body of knowledge regarding crime as a social phenomenon. It includes within its scope the processes of making laws, breaking laws and reacting towards the breaking of law. (From the above definition it is apparent that criminology is a combination of how the society defines and deals with crime within a social and legal context).

Donald TaftCriminology may be divided into two branches:

1. general 2. specific

Criminology in a general sense is the study of crime and criminals. In a specific sense it seeks to study criminal behavior its goal being to reform the criminal behavior or conduct of the individual which society condemns.

WebsterCriminology is the scientific study of crime as a social phenomenon or of criminals and their behaviors and family conditions.Criminology can thus be said to be and academic discipline that employs scientific methodology to study crime, its major forms, its reasons for existence or causation and how the criminal justice system can respond to crime. In its narrower sense, criminology looks at criminal behavior of

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individuals in society and how they come to be perceived as such i.e. Their social, cultural and economic background. In a wider sense, it looks at how the criminal is dealt with e.g. how he is punished and therefore includes penology.

Criminology as a subject therefore deals with: criminal acts; the criminal; it indirectly deals with the victim of the crime; crime causation and theory; crime prevention and detection of potential offenders; The efficacy of the criminal justice system.

Criminology borrows heavily from other sciences including biology (genetical make up of a criminal) psychology) (thinking process of a criminal mind), psychiatry (mental stability and inclination of a criminal), philosophy, general medicine etc.

IMPORTANCE OF CRIMINOLOGYI. The most significant purpose of criminology is its concern for crime

and criminals. There is a basic assumption that no one is born a criminal. (Check out the Lombroso theory). Reformation is therefore treated as the ultimate object of punishment while “individualization” i.e. according individualized understanding and treatment is the preferred method for such reformation.

II. It is important for lawyers(when dealing with criminal clients it helps to understand their mind set and particular circumstances for purposes of giving proper legal advise as well as for pursuing a logical line of defense), judicial officers(for purposes of awarding appropriate sentencing, it is important for a judicial officer to not only understand the offender, but the society/community’s perceptions and emotions on given offences), law enforcement officers(for purposes of investigations, prosecutions, surveillance and crime prevention, for those holding criminals such as prison officers), social workers, psychologists, etc to understand the criminal more.

III. It enhances official understanding of criminals, offenders, the types and prevalence of offences committed, generally or specifically by a class of people or in certain localities. This kind of understanding supported by data is important for crime detection and control. The government is enabled to plan better in terms of allocation of resources towards fighting different types of crimes.

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IV. The ultimate object of criminology is to render a crimeless society. (This is of course a very remote possibility especially considering how crimes are created and the fact that sometimes very legitimate behavior i.e. chang’aa drinking is criminalized).

IS CRIMINOLOGY A SCIENCEProponents of the view that criminology is not a science base their argument on the standards of quality and validity of what can be classified as science. To this end they argue that the validity of a science is based on two concepts:

I. Stability i.e. it must be firmly established with unlikelihood of ad hoc and unpredictable changes

II. Homogeneity, i.e. the quality of being alike all of the same type.

Since crime is not stable, nor is it homogenous, i.e. not all actions amounting to a crime in one jurisdiction will amount to crime in all jurisdictions, it is therefore concluded by the said proponents that criminology cannot be a science.

THOSE AGAINST

George WilberHe argued that anti-social behavior in society cannot be scientifically interpreted. According to him, general propositions of universal validity are the essence of a science. Such propositions can only be made regarding stable and homogenous units. Crime is not a stable homogenous unit but varies from place to place and from time to time. What may be regarded as a crime in one jurisdiction may not be a crime in another e.g. abortion, euthanasia, etc.

Max WeberA German criminologist.He argued that criminology as a branch of sociology merely researches into components of human behavior without providing for solutions unlike normal sciences. Thus by offering an analysis of criminal acts without puritive answers it merely exposes a situation without a solution and thus cannot be called a science. (What about penology which offers solutions, and arguments for rehabilitation and reintegration into society, decriminalization, which are advanced by criminologists, it is therefore not

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entirely true that criminology does not offer solutions in any case do all sciences offer puritive solutions).

Herman ManheimHe belongs to the school that argues that criminology is not a science as it has no techniques and methods of its own, and that it borrows heavily from others e.g. medicine, psychology etc. He argues that so far criminology has developed no scientific methodology of its own; its techniques of research are on the whole identical with those used in other social sciences.

EllenburgerIn response to Manheim’s arguments; His response is that: - Even amongst the natural sciences there are some like botany and zoology which deal with the study of facts which are not strictly unique and individual and which do not deal with general phenomena. Criminology is based on other social sciences just like medicine is based on anatomy, physiology, physics, chemistry etc. Neither medicine nor criminology is purely theoretical. They have a meaning which derives from their practical application. The justification for medicine lies in the therapeutics and public health and that of criminology in penal reform, penology and prevention of crime.

THE CONCEPT OF CRIMEThe concept of crime is essentially concerned with social order. Generally, a crime can be defined as an act fit for serious condemnation or an act that is frowned upon by society it may start off as a moral wrong that is then elevated to a prohibited act for which the society ascribes specific sanctions.

KennyHe defined a crime as a wrong whose sanction is punitive and which is in no way remissible by any private person but is remissible by the Crown.

Keeton Defined a crime as an undesirable act which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty rather than leaving the remedy to the discretion of the injured person.

SutherlandHe defines criminal behavior as behavior which is in violation of criminal law. No matter what the degree of immorality, reprehensibility, or

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indecency of an act, it is not a crime unless it is prohibited by criminal law. Professor Sutherland further mentions seven attributes of a crime.

a. Before a behavior can be called a crime there must be certain external consequences or harm. A crime has a harmful impact on social interest.

b. The external consequences or harm shall be strictly forbidden. Anti-social behavior is not a crime unless forbidden by law.

c. There must be intention.d. Mens rea (a guilty mind) must be presente. There must be fusion or concurrence of mens rea and intentionf. There must be a causal relationship between the legally

forbidden harm and the misconductg. There must a legally prescribed punishment.

Difficulties exist in the legal definition of crime such as: There is no universal concept of crime From time immemorial certain conduct or norms were

permissible but these vary with time and placeFrom a legal point of view crime can be described as:1. From the nature of the act itself.

a. It is a wrong which causes harmb. It is a wrong against the whole communityc. It is a wrong that directly threatens the well-being and security of

society.2. From the proceedings (i.e., the process)

a. Crime is dealt with through criminal proceedingsb. It is an illegal act whose proceedings are initiated, stopped or

pardoned by the state. (role of AG, etc)

3. From the consequencesa. It is a wrong whose sanction is punishmentb. It is a wrong whose sanction is punitive and for which the state

decides on the proceedings and the nature of that punishment.

The Principle of LegalityThe principle is embodied in three maxims:

a. Nullum Crimen Sine Lege

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There can be no crime without law. No one is held criminally liable unless he has done an act which is expressly forbidden under existing law. Thus, crimes must be very specific. They cannot be assumed by way of analogy. The conduct that is sought to be prohibited must be clearly provided for and the punishment for it provided. (The only offence that is not clearly defined in the statutes is contempt of court (on the face of it), but nonetheless a remedy is provided).The principle specifically provides against retroactivity or retrospectively. Meaning that; conduct that has already occurred cannot be affected by the passing of a statute making the activity criminal. Therefore laws applying to crime cannot apply backwards.

b. Nulla Poena Sine LegeThere is no liability under criminal law for omissions. Thus moral wrongs are not legal wrongs and are therefore not punishable.

c. Nullum Crimen Sine Poena

There can be no crime without punishmentFor one to be guilty of a crime two elements must be proved, in satisfaction of the maxim actus non facit reum mens sit rea.

1. Mens Rea – A guilty mind2. Actus Rea – Guilty Act

The law however excludes certain persons from criminal liability or presumes them to be incapable of committing an offence.Under Section 14 (1) of the Kenyan Penal Code, a person below the age of eight years is not criminally responsible for any act or omission. This is an irrebuttlable presumption of law.Under Section 14 (2) of the Penal Code; a person between the ages of eight and twelve is not criminally responsible for an act or omission unless it is proved that at the time of doing the act or making the omission he had the capacity to know that he ought not to do the act or make the omission. This is a presumption in law that can be rebutted.Under Section 14(3) a male person under the age of twelve years is presumed to be incapable of having carnal knowledge.Mens rea may also be affected by other factors such as:1. InsanityEvery person is presumed to be of sound mind unless the contrary is proved. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is by reason of disease affecting his

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mind incapable of understanding what he is doing or knowing that the ought not to do the act or make the omission. Where one is found guilty of an offence but proves that at the time of the commission or omission they were suffering from insanity; the accused will then be found to be guilty but insane and detained at the pleasure of the President, (see section 166 of the Criminal Procedure Code, CAP 75, Laws of Kenya, which makes elaborate provisions for the defense of insanity).2. Mistake or ignorance of the law Ignorance of the law is no defense to a criminal charge. It is presumed that all citizens know the law.3. IntoxicationIntoxication does not constitute a defense to any criminal charge unless the intoxication was such that the person did not know that such act or omission was wrong or did not know what he was doing. (Note that intoxication itself can constitute a crime, e.g. drunken driving).4. CompulsionA person is not criminally responsible for an act or omission if it was done or omitted due to threats on the part of the offender to kill him or do him grievous bodily harm if he refuses to do the act or make the omission. Threats of future injury do not excuse offense. Section 16 of the Kenyan Penal Code states as follows:“A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or to him grievous bodily harm if he refuses; but threats of future injury do not excuse any offence, nor do any threats excuse the causing of or the attempt to cause death.”Section 19 states as follows:“A married woman is not free from criminal responsibility for doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be good defense to prove that the offense was committed in the presence of, and under the coercion of, the husband.”5. Necessity

This defense is applicable is from an objective standpoint the accused can be said to have acted reasonably and proportionately in order to

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avoid a threat of death or serious injury. (R v Dudley and Stephens QBD (1881 -5) All ER 61. The two accused with a third man and the deceased, a 17 year old boy, were cast away in an open boat, 1,600 miles from land. When they had been eight days without food and six days without water, the accused killed the boy, who was weak and unable to resist but did not assent to being killed. The men fed upon his body and blood for four days when they were picked up by a passing vessel. At the trial for murder, the jury found by a special verdict that if the men had not fed upon they boy they would probably not have survived the four days; that the boy was likely to have died first; that at the time of the act there was no reasonable prospect of relief; that it appeared to the accused that there was every probability that they would die of starvation unless one of the castaways was killed; that there was no appreciable chance of saving life except by killing; but there was no greater necessity for killing the boy than any of the three men. On reference of this decision to the QBD, the accused was found guilty of murder. Various arguments were made which in effect seems to be that necessity should not involve the taking of an innocent life, which does not threaten one in order to save one’s own life.

“To preserve one’s life is generally speaking, a duty, but it may be the plainest and the highest duty to sacrifice it. War is full of instances in which it is a man’s duty not live, but to die…..It is not correct, therefore, to say that there is any absolute and unqualified necessity to preserve one’s life.It is not needful to point out the awful danger of admitting the principle which has been contended for. Who is to be judge of this sort of necessity? By what measure is the comparative value of lives to be measured? Is it to be strength or intellect, or what? It is plain that the principle leaves to him who is to profit by it to determine the necessity which will justify him in deliberately taking another’s life to save his own. In this case the weakest, the youngest, the most unresisting was chosen. Was it more necessary to kill him than one of the grown men? The answer be, No.‘So spake the Fiend; and with necessity,The tyrant’s plea, excused his devilish deeds.’

It is not suggested that in this particular case the ‘deeds’ were ‘devilish’; but it is quite plain that such a principle, once admitted, might be made the legal cloke for unbridled passion and atrocious crime. There is no path safe for judges to tread but to ascertain the law to the best of their ability, and to

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declare it according to their judgment, and if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has entrusted to the hands fittest to dispense it. It must not be supposed that, in refusing to admit temptation to be an excuse for a crime, it is forgotten how terrible the temptation was, how awful the suffering, how hard in such trials to keep the judgment straight and the conduct pure. We are often compelled to set up standards we cannot reach ourselves, and to lay down rules which we could not ourselves satisfy. But a man has no right to declare temptation to be an excuse, though he might himself have yielded to it, nor allow compassion for the criminal to change or weaken in any manner the legal definition of the crime. It is therefore, our duty to declare that the prisoners’ act in this case was willful murder; that the facts as stated in the verdict are no legal justification of the homicide; and to say that, in our unanimous opinion, they are, upon this special verdict guilty of murder. (They were then sentenced to death. However, the sentence was subsequently commuted to one of 6 months imprisonment without hard labour).6. Self DefenseA person in defending himself can use such force as is necessary but the means of defense must be comparable with the means or degree of force being used against him. Excessive force is not justifiable. The Kenyan Criminal Procedure Code deals with use of force under Section 23 (which deals with arrest); this issue is also dealt with under Section 18 of the Penal Code.

Section 21 (2) of the CPC“If a person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, the police officer or other person may use all means necessary to effect the arrest”.Subsection (3)Nothing in this section shall justify the use of greater force that was reasonable in the particular circumstances in which it was employed or was necessary for the apprehension of the offender.”

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VARIOUS SCHOOLS OF CRIMINOLOGY/THEORIES OF CRIME AND CAUSATIONVarious scholars have attempted to explain the causation of crime and criminal behavior. Each school of criminology explains crime in its own manner and suggests punishment and measures to suit its ideology. Each school represents the social attitude of people towards crime in a given time.

Pre-Classical School of CriminologyDuring the period of the seventeenth century Europe was characterized by a dominance of religion in state activities. At this stage, scientific knowledge was yet unknown. The concept of crime was vague and obscure. Society was at the time largely unable to explain criminal behavior. An explanation of criminal conduct was therefore sought through spirits, demons, and other unknown powers. The principle behind this concept was that a man commits a crime due to the influence of some external power and is not subject to the control or understanding of man. Since the spirit world is not one that is easily understood or discernable, it formed a perfect explanation for crime.No further attempts were made to probe the real cause of crime. Worship, sacrifices, ordeals by fire and water were usually prescribed to pacify the spirit and relieve the victims of its evil influence. Trial by battle was also used as a method of deciding the fate of the criminal. The criminal was therefore treated as a person who could only be cured through torture and pain. The pre-classical thinking has however withered away with the lapse of time and advancement of knowledge.

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Naturalistic SchoolThe proponents of this school argued that crime must be explained through the use of ideas and interpretations of objects and events and their interrelation with the existing world. Thus, there is no place for other worldly powers or spirits. No matter how unsatisfactory, the explanation must rest on what is known or assumed to be true of the physical and material world. This approach is ancient as well as modern.

The Classical School of CriminologyDuring the middle of the eighteenth century, Beccaria the pioneer of modern criminology expounded his naturalistic theory of criminality by rejecting the theory propounded by the pre-classical school. He laid greater emphasis on the free will of the individual, arguing that intelligence and rationality are the fundamental characteristics of man and therefore the basis for the explanation of human behavior whether individual or collective. Thus, intelligence makes man capable of self-direction and any conduct engaged in will be assumed to have been thought of and rationalized by the individual. Within this frame of reference, crime and criminals are usually viewed from a strictly legal point of view. I.e. crime is defined as the commission of any action prohibited by criminal law or the omission of any act required by it. A criminal is defined as a person who commits a crime. Crime is seen as the product of the free choice of the individual who assesses the potential benefits of committing the crime against its potential cost. The rational response of society should therefore be to increase the cost and decrease the benefits of crime to the point that individuals will not choose to commit a crime.The task for criminology is seen as designing and testing a system of punishment that would result in the minimum occurrence of crime. Thus, this perspective is concerned with the question of deterrence.The main tenets of the classical school of criminology are as follows:

1. Man applies his sense of reasoning as a responsible individual:

2. It is the act of an individual and not his intent which forms the basis for determining criminality in him. Classical criminologists are therefore concerned with the “act” of the criminal rather than his “intent”.

3. The classical criminologists are greatly influenced by hedonism – the pain (cost) and pleasure (benefit) theory. Thus, they accepted

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punishment as a mode of inflicting pain, humiliation and disgrace on the offender so as to create fear in him and thus control his behavior.

4. The proponents of this school of thought considered crime prevention more important than the punishment for it. They therefore stressed the need for a well-established system of criminal justice.

5. The classical criminologists supported the right of the state to punish offenders in the interest of public security. Keeping in view the hedonistic principle of pain and pleasure they pointed out that individualization was to be the basis of punishment. The punishment was to be meted out keeping in view the pleasure derived by the criminal from the crime and the pain caused to the victim there from. They however advanced the theory of equalization of justice i.e. Equal punishment for the same offence.

6. They further believed that criminal law was primarily based on positive sanctions. They were against arbitrary use of power by judges and abhorred torturous punishments.

The greatest achievement of the classical school is the fact that it shifted emphasis from myths and concentrated on the personality of the offender in order to determine his guilt and punishment. In other words, Beccaria was the first criminologist to shift the emphasis from crime to criminals.Nonetheless, the classical school has the following shortcomings:

Firstly, it proceeded on an abstract presumption of free will and relied solely on the criminal act without devoting any attention to the state of mind of the criminal;

It also erred in prescribing equal punishment for similar offences thus making no distinction between first offenders and habitual offenders.

Neo-Classical School of CriminologyThe “free-will” theory of the classical school did not survive for long due to the oversights mentioned above. The neo-classists asserted that certain categories of offenders such as minors, idiots, insane or incompetent persons had to be treated leniently irrespective of the similarity of their criminal acts

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with those of other offenders. This reasoning was based on the argument that such persons are incapable or partially incapable of distinguishing right from wrong.The Neo-Classical theory can be summarized as follows:

1. They approached the study of criminology on scientific lines by recognizing that certain extenuating situations or mental disorders deprive the criminal of his normal capacity to control his conduct. In so doing they represent a reaction against the severity of the classical view of equal punishment for the same offence.

2. They were the first school to point out the distinction between a first offender and a recidivist.

3. They started on the premise and assumption that man acts on reason of intelligence and is therefore responsible for his own conduct. But those lacking normal intelligence or suffering some mental depravity are not responsible for their conduct as they do not possess the capacity of distinguishing between good or bad and should therefore be treated differently from other offenders.

4. Although they recommend lenient treatment for irresponsible or mentally deprived criminals on account of their incapacity to resist criminal tendency, they unanimously believed that all criminals whether responsible or irresponsible must be kept away from society.

5. The distinction between responsibility – sanity and insanity as suggested by the neo-classical school paved way for the formation of the different correctional institutions such as parole, probation etc in the criminal justice system. Through this school therefore attention of criminologists was drawn to the facts that all crimes have a cause.

6. This school adopted a subjective approach to criminology and concentrated their attention on conditions under which an individual commits crime.

7. The origin of the jury system and the assessor system is essentially the result of the reaction of the neo-classical approach towards the treatment of offenders.

The main shortcoming of the neo-classical school is that their theory presumes that the criminal whether responsible or irresponsible is a menace to society and therefore needs to be eliminated from it. Their primary concern is therefore to protect society from crime and criminals.

Positive Criminology This school presumes that man’s behavior is determined by factors outside his control. These factors are either biological or cultural.

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Those who argue that the factors are biological believe that man’s social organization has developed as a result of his biological evolution and hence social evolution is subsequent and not primary. On the other hand positivists who base their theory on cultural factors; argue that man’s behavior despite his identification with the world of biology is always related to and somehow reflects the characteristics of the social world in which he lives.Positivists thinking thus relies heavily o philosophy, biology, sociology and history among other disciplines. Criminology is therefore understood as an analysis of criminal behavior through scientific study of the physical, social and cultural characteristics of the criminal.

Critical Criminology This is a framework based on critical thinking, employing a variety of disciplines which include political science, economics, sociology and philosophy. Its proponents are not preoccupied with the question of whether man’s behavior is free or determined. They are concerned with the process by which man creates the social world in which he lives.Critical criminologists would for example maintain that the phenomenon of crime is socially constructed when a society defines certain actions and people as criminal. Any of a wide variety of people and actions may, at one time or another, be the subject of these definitions.Thus crimes and criminals are not independent phenomena that can be identified and studied objectively by the social scientist. Crime and criminals exist only to the extent that they are defined as such by society. The critical criminologist therefore studies the processes by which particular people and actions become criminal at particular times and places.

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THE ANTROPOLOGICAL SCHOOL/THE ITALIAN SCHOOL OF CRIMINOLOGYThis is one of the earliest positivist schools of thinking.With the advance of time and the development of scientific research during the nineteenth century certain doctors in Europe were successful in establishing that it was neither the “free-will”(Classical) of the offender nor his innate depravity nor evil spirits that actuated the offender to commit crime. The real cause of crime lay in the anthropological features of the criminal. Some proponents of this theory tried to demonstrate the organic functioning of the brain and established a co-relationship between criminality and the structure and functioning of brain.The main proponents of this theory are three Italian criminologists:

Cesare Lombroso Raffaele Garofolo Enrico Ferri

Cesare LombrosoHe is referred to as the father of the Italian school of criminology. He was an Italian psychiatrist who was a physician in the army. Lombroso turned attention from crime to criminals. During his period of service in the army he was able to observe those army personnel who were trouble-makers. From his experience he concluded that the criminals were a distinct anthropological type possessing definite physical characteristics.According to him, the criminal was a biological throw-back to an earlier evolutionary stage – a man more primitive and savage than his non-criminal counterparts. His theory was based on the view that the physical characteristics of the criminal were an important causation for his criminal behavior. The theory was largely based on degeneracy. This degeneracy was atavistic – i.e. the criminal was inferior in his development to normal

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man and resembled lower or ape-like animals. Lombroso was therefore, of the view that criminals were born criminal. He arrived at his conclusions, based on a study of 833 Italian criminals mainly drawn from the army.From his research, he concluded that born criminals had the following characteristics:

1. They had a deviation in head size and shape;2. Their faces were not symmetrical;3. They would have excessive dimensions of the jaw and cheek bones;4. They would have eye defects and peculiarity; 5. They had ears of unusual size – very small or standing out from the

head as do those of chimpanzees;6. the nose would be twisted and upturned. For thieves, the nose would

be flat, beak-like for murderers or with the tip rising like a peak;7. The lips would be fleshy and swollen;8. The dentition would be abnormal;9. The chin would be receding or excessively long or excessively flat as

in apes;10.Abundance and variety of wrinkles;11.Anomalies of the hair marked by characteristics of the hair of the

opposite sex;12.Defects of the thorax – too many or too few ribs13.Inversion of sex characteristics in the pelvic region;14.Excessive length of the arm;15.Too many or too few fingers or toes.

Of the 833 criminal people studied, 21 percent had one or more of such anomalies, 43% had five or more. A person with five or more was described/classified as a criminal. As such Lombroso adopted an objective and empirical approach to the study of criminals through his anthropological experiments.In further research, he classified criminals as follows:

1. The Born Criminal

In his opinion, these were criminals who could not refrain from engaging in criminality. The environment had no relevance whatsoever to the crimes committed by these offenders. He therefore, considered these criminals to be beyond reformation;

2. Insane Criminals

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The second category of criminals were insane criminals who resorted to criminality on account of certain mental disorders or insanity.

3. Crimes of Passion

The third category are those who commit crime in a state of passion or due to inferiority complex;

4. Atavistic Criminals

The atavistic category are those who commit crime due to alcohol or when they get the opportunity.

Critique of Lombroso’s theory;

Charles GoringHe was an English criminologist who carried out research on the psychology of criminals. He agreed with Lombroso’s statistical and inductive method and supported the latter’s view that criminals were often mentally depraved. He also commended Lombroso for his assertion that the centre point of penology was neither crime nor punishment but the individual.He critiqued Lombroso’s worked based on the following issues;

There is no such thing as a physical criminal type. In his opinion, the whole of Lombroso’s enterprise was conducted with the intention of stamping a pre-conceived idea with the hallmark of science;

One cannot declare people criminal merely by their physical characteristics. The use of the word criminal should be restricted to a legal framework which prohibits certain conduct and which finds those guilty of such conduct criminal and punishes them as such;

Even if specific differences did exist between the criminal and the non-criminal, this does not mean that the criminal is abnormal but rather the differences evidence a selected class of normal men whose qualities may present extreme degrees from the normal average.

Thus Goring concluded that there is no such thing as a physical criminal.

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E.A. HootonHe studied 17,000 individuals of whom 14,000 were criminals drawn from across 10 states of the United States of America. His conclusions were quite similar to Lombroso’s.According to him crime is the result of the impact of the environment upon low grade human organisms. It therefore follows that the elimination of crime can only be effected the expiation of the physically, mentally and morally unfit or their complete segregation. The study concluded that big tended to be murderers and robbers. Tall heavy men are killers and also commit forgery and fraud. Undersized men are thieves and burglars; short heavy persons commit assault, rape and other sex crimes. Men of mediocre physique have no specialty and commit several offences.

Conclusion1. In 19 out of 33 measurements, there was a significant difference

between criminals and civilians;2. Criminals are inferior to civilians in nearly all their body

characteristics;3. Physical inferiority is significant as it is associated with mental

inferiority;4. Tattooing is more common among criminals than civilians;5. Thin lips and compressed jaw angles are common in criminals;6. The ear of the criminal tends to be rolled or small’7. Criminals have low sloping foreheads, thin necks and sloping

shoulders.He was criticized on the following grounds:

Most of the people he studied were recidivists i.e. they fell back to crime.

He ignored other important differences between criminals and civilians apart from physical characteristics.

While he accepted that genetic make-up may influence behavior, he never actually clarified how this genetic make-up would actually influence the criminal.

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Enrico Ferri (1856 – 1929)He was a student of Lombroso, though he challenged Lombroso’s views on criminality. Through his research, Ferri proved that mere biological reasons were not enough to account for criminality. IN his opinion, there were other factors that influenced crime such as psychological, sociological, economic and emotional factors. For this reason Ferri is referred to as the founder of criminal sociology.Ferri described a criminal as an agent of outside forces. During Mussolini’s regime Ferri prepared a Penal Code for Italy. In it he proposed that for the reformation, prevention and rehabilitation of criminals the following social needs had to be considered; free trade, abolition of monopolies, better street lighting, birth control, freedom of marriage and divorce, public recreation, better economic conditions of the public, improvement of laws and abolition of certain taxes. However, Ferri emphasized that punishment is still important for the alleviation of crime and in some cases useful for reformation.Ferri classified criminals into the following categories:

1. Insane criminals – inclined to crime due to congenital factors;2. Born criminals - commit crimes out of impulse, anger, or excessive

zeal;3. Occasional or habitual criminals – influenced by social factors around

them and the need to satisfy certain needs within the social environment;

He categorized the factors that lead to criminal behavior as follows; Physical – race, climate, geographical location, seasonal effects,

temperature; Anthropological – age, sex, organic and psychological conditions; Social – population density, custom, religion, organization of

government, economic and industrial conditions.

Raffaele Garofolo (1852 – 1934)Garofolo was a magistrate in Italian courts. He agreed with Lombroso and Ferri in emphasizing the positive approach to crime - i.e. that crime can only be understood by scientific research and investigations. In so doing he rejected the pre-classical theory and the classical theory of free will. Garofolo formulated a sociological definition of crime where crime meant any immoral and harmful act that is regarded as criminal by the public. The criminal who commits the crime has no pity (sympathy) or probity

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(honesty). Lack of pity causes crime against persons while lack of probity leads to crime against property.He categorized criminals as such:

1. Endemic criminals – e.g. murderers, they commit crime in their own locality and are mainly influenced by passion.

2. Criminal deficient in probity i.e. honesty e.g. thieves3. Criminals influenced by lust – lascivious criminals4. Violent criminals – affected by environmental influences such as

prejudices of honor, politics and religionGarofolo’s main contribution was his concentration on the idea of motive as an important causation of crime. An understanding of motive was the first step to changing the criminal and alleviating criminal behavior in society. He suggested three means of eliminating crime:

1. Death for those whose acts grow out of permanent psychological anomaly which renders the subject for ever incapable of a social life.

2. Partial elimination including lengthy or life time imprisonment and transportation for those fit only for the life of nomadic hordes or primitive tribes. He also suggested mild isolation for young and more hopeful offenders.

3. Repatriation for those who commit their under exceptional circumstances not likely to occur again.

Garofolo was however, not very optimistic about reformation of offenders from the experience in the criminal justice system. He therefore, strongly emphasized and pleaded for elimination of habitual offenders were incapable of social adaptation as a measure of social defense.Modern positivism does not strictly adhere to Lombroso, Ferri, or Garafolo’s arguments. It however emphasizes the application of scientific methods to the study of criminal behavior, the criminal himself, his environment and other causative factors in an attempt to determine the causes of crime and its elimination of reduction in society.

Appraisal of the Positive School It rejected the earlier classical theories of spirit and free will; It attributed criminality to anthropological, physical and social

factors; The attention of the criminologist was drawn to the individual, the

personality of the criminal rather than his act – the crime or

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punishment. This paved way for modern penology to emphasize individualization as a method reformation;

Exponents abandoned the retributive mode of punishment. Reformatory modes were to be used on different classes of criminals;

Only those criminals that were incapable of reformation were to be eliminated;

While deciding a case a judge should not only consider the law but the circumstantial conditions of the accused.

The Ecological School

The ecological school examines factors including the environment and other social factors that may lead to criminal behavior.

Social Disorganization TheoryAccording to this school of thought high crime rates are indices of an underlying state of social disorganization. Increase or decrease in population can cause social disorganization, rapid changes in technology, industrial growth, cultural conflict etc.

The Differential TheoryThis theory was developed by Professor Edwin Sutherland an America criminologist. This theory is based on the following points:

1. The processes which result in criminal behavior are fundamentally the same in form as the processes which result in lawful behavior. Criminal behavior, just like lawful behavior is learned. Thus a person who is not already trained in crime cannot invent criminal behavior

2. Criminal behavior is determined by a process of association with those who commit crime just as lawful behavior is determined by association with those who are law abiding.

3. Differential association is the specific causal process in the development of criminal behavior. The principles of the process of association are the same in the development of criminal and lawful behavior but the techniques, training, motive etc in the two processes differ. This is why Sutherland calls it differential association.

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4. A person becomes delinquent because of an excess of definitions favorable to violation of law over definitions unfavorable to violation of law.

5. The chance that a person will participate in systematic criminal behavior is determined roughly by the frequency and consistency of his contacts with other persons of a criminal behavior.

6. Cultural conflict is the underlying cause of differential behavior. This is common in areas where society is composed of people of different races, ethnic groups, habits and cultures.

7. Social disorganization is the basic cause of systematic criminal behavior.

Criticism1. Sutherland’s theory does not attempt to explain the origin of crime. It

relies on an existing criminal group that influences a normal person to engage in criminal activities.

2. The theory cannot apply uniformly to all kinds of offenders e.g. rural and urban based offenders, white and blue-collar criminals. It cannot apply evenly to perpetrators of individual crimes e.g. crimes of passion, occasional and incidental offenders or those pushed to criminal conduct by factors outside their control e.g. Genetic make up, mental imbalance etc.

3. It has also been argued that contrary to Sutherland’s theory, criminal or delinquent behavior is not learned. It comes naturally. It is non-criminal behavior that is learned.

4. The theory fails to recognize that there may be an element of free will in human behavior and leaves little if any room for the introduction of new knowledge i.e. it acts as a conclusive study, yet it is generally accepted that there must be an element of the “unknown”.

5. The theory fails to recognize biological and psychological factors. It is argued that biological differences in human personality also account for criminality in the individual.

Response to the criticsIn response to one of the critics George B Vold (Theoretical Criminology, Oxford University Press 1958) who stated thus; “One of the persistent problems that always has bedeviled the theory of differential association is

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the obvious fact that not every one in contact with criminality adopts or follows the criminal pattern”. (page 194).The response has been that this criticism fails to take into account the words differential and excess, these words refer to both criminal and anticriminal associations and had to do with counteracting forces. Melvin L DeFleur and Richard Quinney (A Reformation of Sutherland’s Differential Association Theory and Strategy for Empirical Verification: (Journal of Research in Crime and Delinquency, January 1966). They discovered that the sixth assertion of the theory says that persons become criminals because of exposure to an overabundance of criminal associations, in comparison with anti-criminal associations.They restated the theory as follows:“Overt criminal behavior has as its necessary and sufficient conditions a set of criminal motivations, attitudes, and techniques, the learning of which takes place when there is exposure to criminal norms in excess of exposure to corresponding anticriminal norms during symbolilc interaction in primary groups.”Hence it is erroneous to argue state or imply that the theory is invalid because a category of persons – such as policemen, prison workers or criminologists – have had extensive association with criminal behavior patterns yet they are not criminals.Secondly, in response to the criticism that the theory says that persons become criminals through association with criminals is not the correct position. The theory it is posited is concerned with ratios of patterns of behavior , no matter what the character of the person presenting them. Accordingly if a mother teaches her son that honesty is the best policy, but also teaches him that it is alright to steal a loaf of bread when you are starving, she is presenting the son with an anticriminal behavior pattern and a criminal behavior pattern, even if she herself is honest, non criminal and even anticriminal. In other words one can learn criminal behavior patterns from persons who are not criminals and anti criminal behavior patterns from hoods, professional crooks, habitual offenders and gangsters.Thirdly, there was criticism based on the use of the word systematic as opposed to general criminal behavior, in subsequent publications Sutherland deleted the offending word.Fourthly, in response to the criticism that the theory does not explain why people have the associations that they have, it is stated that this is a highly relevant research problem and when viewed as a principle that attempts to account for variations in crime rates it does deal in a general way with

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differential opportunities for association with an excess of criminal behavior patterns.Lastly the responses can be seen in the context of on going research, ie the theory could only be realistically be expected to deal with facts or norms that were known and available at its conception, criticisms form a good basis for new research taking into account various developments.

Multiple Causation TheoryMany scholars have insisted that crime is a product of a large number of factors and that these factors cannot now and perhaps cannot ever, be organized into general propositions which have no exceptions; that is they insist that no scientific theory of criminal behavior is possible. This approach which is considered more of an approach than theory is known as the multiple causation or factor theory. It is used primarily in discussions of individual cases of crime, but one form of this approach is also used in analysis of variations in crime rates.Those who use this approach to study individual cases are convinced that crime is as a result of a combination many factors, while another case is also caused by combination of factors and circumstances. Factors and circumstances taken onto consideration include; anthropological, physical, natural or sociological factors. Social factors include population density, immigration, public opinion, customs, religion, public order etc.A proponent of this approach William Healy (The Individual delinquent (Boston: Little, Brown 1915) was determined that no theoretical orientation or preconception would influence his findings and that he would simply observe any “causal factor” present. The result was that at a time when many were concerned with discounting the physical and biological explanations for crime, this multiple causation assumption based on empirical studies gained importance within the area of criminology.Anthropological factors include age, sex, status, and profession.Physical factors include race, climate, fertility, seasons, and temperature etc.A classical example of multiple factor thinking about individual cases is found in the book “Social Disorganization” by Mabel A Elliot and Francis E Merrill (New York, Harper 1941):“Elaborate investigations of delinquents give us conclusive evidence that there is no single predisposing factor leading inevitably to delinquent behavior. On the other hand, the delinquent child is generally a child handicapped not by one or two, but usually by seven or eight counts. We are safe in concluding that almost any child can overcome one or two handicaps, such as the death of one parent or poverty and poor health. However, if the

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child has a drunken unemployed father and an immoral mother, is mentally deficient, is taken out of school at an early age and put to work in a factory, and lives in a crowded home in a bad neighborhood, nearly every factor in his environment may seem to militate against him.”All the statement may seem to infer that each and every factor is of equal importance, adherents of this approach, ordinarily argue that either the presence of one or two important factors or seven or eight minor factors will cause delinquency.

Cyril BurtA British scholar who using this multiple approach in a study (London: University of London Press, 1944, at p 600), found 170 conditions, every one of which was considered as conducive to delinquency. (Sutherland calls this the inevitable consequence of such crass empiricism.)Crime is not assignable to one universal source but rather to a wide variety of reasons which is best explained by a multiple causation approach.Others have argued that the multiple causation or multiple factor theory is more illuminating and more in accord with the variety of people involved in crime – the variety in behavior and mentality of the people concerned. The approach recognizes that behavior is conditioned by natural, biological, social cultural and economic influences.

CriticismAlbert Cohen (Harvard, 1951)

1. There has been confusion of explanation by means of a single factor and explanation by a single theory or system of theory applicable in all cases. A single theory does not explain crime in terms of a single factor and is often concerned with a number of variables. A variable is a characteristic or aspect such as velocity or income with respect to which something may vary. We make statements of fact in terms of the values of these variables, e.g. “The crime rate is high among persons with incomes of less than $2,000. per year”. The pertinent variable here is income and its value is $2,000. but neither a statement of one fact (single factor) nor a series of such statements (multiple factors) about crime is a theoretical explanation of crime. A theoretical explanation, a single theory organizes and relates the variables; it is an abstract statement of how the known variations in the values of one variable are related to known variations in the values of other variables. A test the theory is how well it accounts for all the variations in the values of the variables.

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2. Factors are not only confused with causes but each factor is also assumed to contain within itself a capacity to produced crime, a fixed amount of crime producing power. Thus one factor is not always considered powerful enough to produce crime in individual cases – several factors must conspire to do so.

3. “evil –causes -evil fallacy” this fallacy is that evil results (crime) must have evil precedents (broken homes, psychopathic personality etc). so that when we explain crime or other social problem we tend to merely catalog a series of sordid and ugly circumstances which any “decent citizen” would deplore and attribute causal power to those circumstances. In criminology, this fallacious procedure might stem from a desire to eradicate crime without changing other existing conditions which we cherish and esteem; that is criminologists tend to identify with the existing social order and seek “causes” of crime in “factors” which might be eliminated without changing social conditions which they hold dear, or which may be safely deplored without hurting any one’s feelings.

CATEGORIES OF CRIME

WHITE COLLAR CRIMECrime is committed not only by persons below the marginal economic stratum or those who suffer from physical or mental defects or those who belong to a certain criminal environment. Crime is also committed by “white collar criminals”, persons who commit crime within their occupations or businesses. Certain professions offer lucrative opportunities to commit crime and for unethical practices.Professor Sutherland defines white collar crime as “a crime committed by persons of respectability and high social status in the course of their occupation”Professor Gillin points out that “the white collar criminals are intelligent successful and men of high social status”. They belong to the prestigious group of the community.

Categories of White Collar Criminals1. Politicians and Government/Public Servants

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They are considered to be the custodians of the law and destiny of the nation. The most common offence that they indulge in is in the misappropriation of public funds/resources, with the aid of third parties e.g. contractors, suppliers, employment of unqualified persons, over-employment, payment of salaries and other benefits to non-existent workers (ghost workers).

CorruptionGrand corruption has bedeviled many governments and since the year 2000 the UN was already in a process of dealing with corruption within public institutions. In the year 2000 it established and ad hoc committee to look into an effective international legal instrument to fight against corruption. The efforts were carried out under the International Office for Drugs Control and Crime Prevention. This culminated into the United Nations Convention against corruption held in Merida Mexico in 2003.The key characteristics of this Convention are in the following articles:

Article 5Stresses the importance of the critical issues of transparency anc accountability in national legal institutions.

Article 9Focuses on public procurement and calls upon the public authorities “to take necessary steps to establish appropriate systems of the procurement based on transparency, competition and objective criteria in decision making that are effective inter alia, in preventing corruption.”Article 10, highlights the issue of secrecy in public administration and calls for the action to secure greater freedom of information.Article 11, subsequently call on government to safeguard the integrity and independence of the Judiciary by preventing opportunities for bribery.Article 12 expressly, raises the issue of corporate governance by calling for strengthening regulatory and legal action to curb private sector corruption.

Article 15/16Decry the bribery of national and foreign governance officials and call for action to stop such practice.

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Article 33Underscores the need to protect people who report acts of corruption.

Article 43Stresses the need for co-operation to curb corruption and calls for the strengthening actions.

Article 51 Provides for the return of assets to countries of origin as a fundamental principal of the Convention.The new Anti-Corruption and Economic CrimesAct and the Kenya Public Servants Ethics Act both of 2003 deal with corruption which has become the number one white collar crime in Kenya.It is now generally accepted that corruption has a negative impact on society. Globally institutions such as the World Bank, IMF and the UN have conducted studies that show evidence that corruption tends to affect the poor more severely therefore making them poorer with time. It hinders economic development, reduces social services and diverts investments in infrastructure and social services.At the social level, corruption erodes the principles of democratic governance resulting in abuse of human rights, political and social instability etc.Clearly even though corruption has always been an offence under the Corruption Act, concerted efforts that can be seen now are singly as a result of international interventions, by aid granting institutions and countries. During the cold war aid politics were largely characterized by loyalty and countries that were loyal to the capitalist west or communist east did not have to show proper accountability of funds received from the so called donors as long as they were loyal. Most of these countries from the developing world having just emerged from colonialism were often propped up to the detriment of political and economic governance. The end of the cold war brought new dynamics into play and pressure for aid to the newly “liberated” eastern bloc. Having overthrown their dictators thereby increasing democratic space, they brought in a new pre-requisite into aid, that of democratic governance. It was no longer tenable for the aid giving countries to rely on ideological loyalty, nor to be praising and welcoming new democratic leaders in the former Soviet Union, while supporting despots in other developing countries.

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In this new order, it was necessary to create legal frameworks of international nature to ensure that international trade is not captured by a few “criminal” elements through corruption. So whereas, at the local level corruption directly results in poverty, at the international level it leads to unfair competition or lack of it, it increases the cost of doing business and distorts the picture of use of aid and international loans, and may also lead to difficulty in repayment, in poor countries governments may resort to the increase of taxes, and overtaxed populations do not over political or economic stability which is required for trade to thrive.High level corruption involves public officials who use their decision making positions to subvert justice for economic or political gain. Private sector represents the demand component of corruption.Corruption networks sometimes operate in a similar fashion to organized crime.

KACC (KACA, 1997, ACPU)It is vested with the mandate to investigate, corrupt conduct, trace, recover corruptly acquired public property, devise corruption prevention mechanisms and educate the public on the dangers of corruption.Whereas, the Commission has power to institute civil proceedings to recover property, it does not have powers to institute criminal prosecutions against perpetrators.

2. The medical professionThis category exhibits white – collar crime through the procurement of illegal abortions, administration of euthanasia, unnecessary treatment and or surgical operations, splitting of medical fees with patients whose health costs are covered by insurance or by employers, exploitation of ignorant persons, this could be through medical research, failing to abide by requisite ethical conduct of research that use human volunteers, issuance of false medical certificates and reports.

3. The police ForceThe police are the custodians of law and order in society. They are charged with apprehension, investigations and in many jurisdictions the prosecution of offenders. In this regard they are likely to commit

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the following crimes; pay offs to conceal crime generally, or evidence specifically, cover ups, brutality to offenders etc.

4. Business men/Corporate Bodies

This category seeks to maximize its profit at the expense of and without regard for the public. Crimes include failure to abide by regulatory standards on safety and security and quality of products, distortions of market forces, through hoarding, fraudulent or false advertising practices.

5. Accountants/Tax Consultants

Crimes include assisting firms, companies and individuals in tax evasion, preparing false or distorted returns, failing to disclose malpractices in public quoted entities.

6. Engineers

Crimes include underhand dealing with contractors and suppliers, passing off sub-standard work and materials etc.

ORGANIZED CRIMEWith the advancement of time and technology criminal behavior has also become more advanced. Organized criminals embrace criminality as a profession to earn their livelihood. In so doing they organize themselves into criminal gangs/outfits and carry out their anti-social activities with skill and efficiency for profit or personal gain or in pursuance of certain political ideals. Sutherland and Cressy refer to it as an organization of vices. At its best, organized crime becomes and economy within an economy or government within government.The chief characteristics of organized crime are:

A hierarchical orderIn organized crime there is a definite order or arrangement in the control and functions of the daily activities.

Authority of the controlling groupThe “top management” controls the whole organization and allActivities.

Treatment given to outsidersOutsiders are not tolerated under any circumstances and will be eliminated even on suspicion of having edged in.

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Method of conducting crimeEach organization has a standardized method of committing crime as well as definite rules of criminal conduct. It has its own laws, customs and techniques. Before a particular crime is conducted, its details are carefully worked out and looked into. This is a “policy matter” which is the responsibility of the top management. After the policy has been laid down, the actual job of carrying it out is given to a few people in the organization. In this coordinated manner, the criminal act is carried out.

Essential outsidersIn every criminal organization, there are persons who do not directly participate in crime activities but who give protection to members of the gang, some such outsiders, are advocates, politicians. Protection may also be induced through corruption from law enforcement officials e.g. police officers, state lawyers and judicial officers.Organized crime has been compared to a multi national corporation. It deals with:

1. Predatory crimes – hijacking, business, racketeering, terrorism,2. demand oriented crimes – criminal activities which are highly

desired by some sections of the community e.g. gambling, narcotics, prostitution(adult and child), slavery

3. the penetration of legitimate business by organized crime e.g. trade unions, state corporations

JUVENILE DELINQUENCYThis is a situation where a minor revolts/rebels against authority and breaks laws and regulations as laid down by society, the state or the family. The causes of juvenile delinquency are:

1. parental discord2. unhappy home backgrounds3. wrong parental attitudes4. poverty5. industrialization

The family plays the following roles:1. It provides organic sustenance and habit training for the juvenile2. It provides primary growth association for the juvenile so that he can

socialize in interpersonal relationships

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3. It is the major avenue for the transformation of values, knowledge and culture.

According to Professor Sutherland, the types of families and homes leading to delinquency can be categorized as follows:

Where other members of the family are criminally inclined, alcoholic or immoral

Absence of one or both parents through death, divorce, separation or desertion

Lack of parental control through ignorance or other factors, lack of awareness or knowledge on parental techniques

Racial or religious differences including differences in the standards of living

Economic problems such as unemployment, insufficient income which sometimes forces one or both parents to be absent from home.

Statistics indicated that where one or more members of a family are criminal, especially the parents, the young ones are likely to become delinquent. Other factors include psychology, and other emotional stresses within the family. These may arise out of favoritism, rejection, rigidity and harshness of the parents and hardships.

Slawson His study revealed that 54% of the studied delinquents had run away

from home due to emotional stress and psychological stress within the family. A girl who finds no affection at home compensates for it with relationships. If she does not find affection within them she may engage in illicit activities including prostitutions.

The rates of delinquency tend to be higher in families with combined older brothers with younger brothers and sisters. Girls with older brothers and sisters register higher rates of crime than those with older sisters and no brothers.

Juvenile delinquency may be influenced by the environment e.g. poverty

Films, videos, TV programmes, and other literature School environment

CowieHe conducted a study on delinquent girls. He concluded that girls and women offend the law much less frequently as do boys and men. When they

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do so, by and large, the delinquency does not take the form of aggressive and socially destructive qualities as that of males. A few girls who fall into delinquency have certain characteristics:

1. they would be physically impaired2. oversize3. lumpish 4. uncouth5. graceless

Juvenile Systems and CourtsThe development of juvenile courts can be traced to a better understanding of the idea of criminal responsibility and the recognition that the factor of age or youth overcame the previously upheld notion or idea of complete or total responsibility of the acts of a young person.

Roscoe PoundJuvenile court brought individualized judging. It recognizes the special circumstances of a particular juvenile. It is a legal tribunal where the law and science especially that of medicine and others dealing with human behavior – biology, sociology and psychology worked side by side with the sole aim of remedying and to a degree presenting delinquency rather than punishing it.Coupled with the development of the juvenile court there was a movement to provide a separated institution for the young offenders e.g. borstal homes, juvenile remands, approved schools, and probation centers etc.

PattersonAccording to him; there is no leper in the world so contagious as the hardened offender and the accustomed prisoner. Any newcomer to prison should be kept away from him. Still more urgent is that the newcomer who is in no way a criminal should never cross his path and certainly should not consult with him on a daily basis.

RECIDIVISMThis connotes persistent indulgence in crime. These are offenders who are jailed, released, re-arrested and re-sentenced. These offenders have a long criminal record, have been frequent inmates of penal or correctional institutions and show scant regard for institutional adjustment.

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Causes of RecidivismAccording to Professor Sutherland, the main causes of recidivism are:

I. the social psychology of the offender;II. inadequacy of the reformative techniques.

On the first point, he was of the view that urbanized regions are more conducive to recidivism than rural areas. Factors such as higher cost of living; slums and congestion offer sufficient opportunities for offenders to commit crime unnoticed for years. Criminality therefore becomes a habit and they eventually become recidivists.Some penologists argue that continued isolation of an inmate from normal society due to a long stay in prison renders him unfit for normal life release. He therefore prefers the routine prison life to which he is accustomed.The prisoner may also suffer from inferiority complex, feeling that law abiding members of society look at him with suspicion and distrust. According to Prof Sutherland, reformative measures are also inadequate. Probation, parole and short term sentences have become inefficient. It is argued that short- term sentences and other minor punishment means the incessant coming and going of habitual delinquents.

Measures to combat recidivism

Look at the different schools

PENOLOGYPenology is the study of punishment and the treatment of offenders. It concerns itself with the events that follow after the conviction of the offender. There is a close relationship between criminology and crime. Criminology focuses on the causes of crime and delinquency. The objective is a better understanding of crime and criminality with the goal of crime prevention. Knowledge of the factors that cause crime helps the state, state agencies, social workers, law enforcement officials to eliminate to some degree the said conducive factors.

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Penology is concerned with crime prevention and control. It focuses on the response of society to delinquent and criminal acts. The response includes within its scope legal and extra legal procedures for handling delinquents and criminal offenders as well as the methods dvised for the prevention and control of delinquency and crime.For us to react positively and effectively to criminal acts, we should be able to understand the causes of the acts, (i.e. through the understanding of criminology). It would help in determining the most effective methods and procedures for handling and treating offenders as well as preventing crime in general.The causes of crime must be understaood in order to deal effectively with crime and criminals. For example where acts are done maliciously, the offender should be handled or treated harshly or severely, e.g. in the case of murder, robbery with violence and rape. In cases of acts done out of desperation such as stealing to feed ones children the offender should be treated more humanely and leniently.

Where the act is influenced by the impact of the social processes on individual behavior, the offender should be dealt with compassionately. This is because the act has more to do with changes in society than his own free will.The manner in which society treats its offenders is an important mechanism through which it attempts t achieve its social goals. There is however no agreement on what these goals or objects are or should be. Some penologists hold the view that society can only be protected by punishing the criminals. Others regard criminals as victims of social or economic and psychological forces in society. The proponents of this view argue that since society creates deviants it has a moral obligation to make amends and treat them with compassionately and with understanding in order to salvage and rehabilitate them.

Throughout history, humanities’ approach to the treatment of criminals can be summarized as follows:

Revenge Rejection Repression Restraint Reintegration

Treatment of offenders has historically been characterized by punishment. However, modern trends as influenced by various schools of thought

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(sociological, positivist, etc) lay emphasis on reformation and re-socialization of the offender.

Treatment of crime and criminals in African Customary lawTraditional social control, the prevention and control of criminal behaviour in traditional African societies was based on kinship and the extended family system. The family was therefore a very central institution in social order. Starting from the family to unit to the highest level of African customary systems of governance, whether it was the centrally organized Kingdoms of Uganda, West Africa etc or the tribal chieftaincies of the Kikuyus, etc, collective responsibility was key to social order.“…..in most African societies, legal rights and duties are primarily attached to a group rather than to individuals…. The individual plays a relatively subordinate role. Very often, the members of the group, as individuals, are only users of collective rights belonging to the family, lineage, clan, tribe, or ethnic group as a whole. A law-breaking individual thus transforms his group into a law breaking group, for in his dealings with others, he never stands alone. In the same vein, a disputing individual transforms his group into a disputing group and it follows that if he is wronged, the may depend upon his group for vengeance, for in some vicarious manner, they too have been wronged.” (Igbokwe, Virtus Chitoo, Social-Cultural Dimensions of Dispute Resolution: Informal Justice Processes among the Ibo-Speaking Peoples of Eastern Nigeria and their Implications for Community/Neighbouring Justice System in North America” African Journal of International and Comparative Law, Vol. 10,1998 pg 446-471 at page 449-50.This is not to say that “group law” in the traditional African context is to be overstated.“While there is a measure of truth in this view of the idea of liability for wrongs, it is inaccurate in so far as it assumes that jurisprudence in Africa does not distinguish between primary and secondary liability for offences against the law. No doubt, African sentiments attach great weight to the solidarity of the group as a necessary condition of the maintenance of the social equilibrium of the local community. Thus, it is common for memberes of the group to make loans of surplus lands, cattle or crops to one another in times of scarcity or misfortune; and it is also natural that, if one of their number should incur the penalty of the payment of blood-money or compensation, other members of his group or family would come to his aied in meetings such an obligation. There is no doubt whatsoever in the minds of these other members, and certainly not in the customoary law on the subject that the primary liability is that of the wrongdoer himself alone, and

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that the other members are merely assuming secondary liability if the fails to pay either in part or as a whole. It is considered by the wrongdoer’s kitha dn kin a matter of family pride that none of their members’ legal obligations be allowed to remain outstanding in relation to the wronged family.” (Elias T O Traditional Forms of Public Participation in Social Defence: International Review of Criminal Policy, No 27 1969, 18-24 at page 19.As a result of this very communal and collective governance system, there was little distinction between civil and criminal cases. Both criminal and civil cases were dealt with in pretty much the same manner. The law was therefore dominated by the idea of compensation to counter-balance and restore equilibrium in society. Cases such as murder, assault and rape were redressed by compensation. Payment of fines or costs to the elders concerned in the settling of disputes whether criminal or civil was the accepted practice in African societies. African customary law focused on reconciliation as means of restoring the social balance upset by the criminal act. However, there were violent punishments in some instances, depending on the nature and gravity of offences e.g. corporal punishment, mutilation, torture, flogging, banishment, and execution.Traditional societies employed the following modes of dealing crime and criminals:

1. Reconciliation between the offender, the victim and their families2. Restitution of stolen or misappropriated property3. Compensation to the victim or his family by the offender or his family4. Compensation paid to the community as a whole, mainly through

elders or chiefs by way of fines or costs5. Corporal punishment for serious offenders or for persons not

amenable to fines owing to poverty6. Capital punishment was reserved for serious offences such as

witchcraft7. Social ostracism public ridicule – sometimes an offender would be

tied up to restrict movement8. Religious sanctions to protect the community from the hostility of the

gods, spirits, e.g. through the offering of sacrifices9. Expulsion of the offender from the community – in serious cases

which did not warrant execution – outlawing

African customary criminal law is not applicable in modern Kenya as it has been excluded from written law. Section 3(1) of the Judicature Act expressly provides that African Customary law is only applicable in civil cases. Section 77(8) of the Constitution of Kenya prohibits the conviction of

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a person of a crime unless that offence is defined and its penalty prescribed in written law.

THE CONCEPT OF PUNISHMENTPunishment of wrongdoers is as old as wrongdoing and as old as society itself. In society there has always been behavior that is socially approved and considered as good and proper by the majority of the people. Similarly there has always been an aspect of social behavior that hurt or injured the feelings of members of the same group. In most human societies today there are rules that have been codified and set as laws whose main purpose is the maintenance of order among human beings. Consequently, the violations of these laws calls for societal reaction. Societal reaction in most cases takes the form of punishment. Punishment is therefore one of the devices for treating offenders to which society resorts to restore harmony or repair the damage done by the violation of the law.

Thomas Hobbes He defines punishment as “an evil afflicted by a public authority on him that has done or omitted that which is adjudged by the same authority to be a transgression of the law; to the end that the will of men may thereby be disposed to obedience”.

Wolf MiddendorffHe defines punishment as an unpleasant consequence which penal law prescribes for socially undesired human conduct and which courts impose according to the laws of penal procedure.

Sir Rupert CrossHe defines punishment as the affliction of pain by the state on someone convicted of an offence.

WestmarkAccording to him a person is said to be punishment when some pain is afflicted on him. That pain may take the form of imprisonment, fines, forfeiture of property or some other restriction or detriment imposed by society as a mark of its disapproval of the act or omission of the individual punished.

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Sutherland and CressyTwo essential ideas contained in the concept of punishment as an instrument of public justice;

1. It is inflicted by the group in its coporate capacity upon one who is regarded as a member of the same group. The loss of status which often follows crime is not punishment, except in so far as it is administered by the group in its corporate capacity.

2. Punishment involves pain or suffering produced by design and justified by some value that the suffering is assumed to have. This is the conventional conception as used in criminal law. If the suffering is merely accidental, to be avoided if possible, it is not punishment.

GrunhutAccording to him, three components must be present if punishment is to act as a reasonable means of checking crime:

I. Speedy and inescapable detection and prosecutionII. After punishment, the offender must have a chance for a fresh start.

Thus punishment should not import any stigma on the offender.III. The state which claims the right of punishment must uphold superior

values.

ParkerHe defines punishment as follows:

1. It must involve pain or some other consequence normally considered unpleasant

2. It must be for an offence against legal rules3. it must be imposed on an actual offender for his offence4. it must be properly administered by human beings other than the

offender5. there must be a spirit of reform behind the punishment6. it must be imposed and administered by an authority constituted by a

legal system against which the offence is committed7. It must be imposed for the dominant purpose of preventing offences

against legal rules.The study of treatment of offenders initially focused exclusively on punishment and excluded other ways of dealing with offenders. However, modern approaches to criminology focus on the role of society and social pressures on the making of criminal offenders. Penologists have thereby been forced to look beyond punishment.

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Where did the right to punish spring from? The right to punish is vested in the state or public authority. Lawful punishment is afflicted by the state. Where does the state derive the power to punish?According to Hobbes, before the emergence of the entity of the state, every man had a right to everything and to do whatever he thought necessary for his own preservation, including hurting, maiming or killing other human beings. Man was at this time a free agent. The emergence of the family unit led to communalism. Family and clan units got together and worked as a group to protect their interests and rights. From communalism, society moved to the state. With the establishment of the state acceded some of his rights to the state. He however retained the right to self defence. The state’s right to punish is not grounded on any gift or concession by the citizens. The citizenry abandoned the right to punish in order to strengthen the hand of the sovereign. According to Hobbes for anything to be properly called a punishment it must possess certain qualities and any other act lacking these qualities but inflicting pain would be an act of hostility.It therefore follows that:

a. Private revenge and injuries inflicted by private men are not legally speaking punishment. They are not sanctioned by a public authority. They do not stem from the state.

b. Social ostracism – where society ostracizes, ignores or neglects an offender this does not amount to punishment.

c. The act of punishment must be preceded by public condemnation as judged by a public authority. This disqualifies mob justice as punishment on the basis that the public condemnation of the offender is not judged by a public authority. It is lacking in state approval.

d. Punishment must be styled by a legitimate public authority. It must be pronounced by the appropriate public authority and meted out by the appropriate authority. Punishment inflicted by means of usurped authority or power or by a judge who has no authority is an act of hostility because the person condemned and the society in general have not delegated authority to these people.

e. Punishment must have a justification or end. Any punishment that ha no possibility of rectifying the delinquent or has no deterrence value on the offender is an act of hostility.

f. Divine punishment – i.e. from nature or God is legally speaking not punishment, because it is not inflicted by authority of man.

g. Punishment must fit the crime. If the harm inflicted is less than the benefit or contentment that naturally flows from the crime committed,

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then the harm on the offender does not amount to punishment. Where the harm is less than the crime, the offender would enjoy some residual benefit.

h. Punishment should not exceed that which is prescribed.i. Harm inflicted for an act done before there was a law forbidding it is

not punishment because there is no transgression of the law. Thus, criminal law does not apply retrogressively.

THEORIES OF PUNISHMENTPhilosophers and penologists have over the years advanced diverse explanations or justifications for punishment. According to Sir Rupert Cross, (The English Sentencing System, 1981, Butterworths, 3rd Edition), at page 120)“In many ways it is a pity that the word “theories” ever came to be employed to describe the moral justifications of the practice of punishing with varying degrees of severity…………..As punishment entails the deliberate infliction of pain, it certainly needs to be justified morally, but the use of the word “theory” is unfortunate for at least two reasons. In the first place, it suggests that one theory must be right to the exclusion of all others whereas, as will appear shortly, it may well be the case that neither retributive theories standing alone nor utilitarian theories standing alone can provide an adequate answer to any major questions that are commonly raised with regards to punishment. The second objection to the use of the expression “theories of punishment” is that it tends to produce interminable and inconclusive discussions concerning the correctness of any one of them…”There is no consensus on which explanations or theory best justifies punishment in society. The historical approach to crime and criminals has undergone tremendous change.According to Gerhard Muller, punishment has undergone four distinct eras:

a. Era of retribution – revenge, repression, rejectionb. Utilitarian era – rehabilitation, reintegration, c. Era of humanismd. Era of nihilism – nothing works as expected

Earlier penologist and criminologists advocated for punishment with the sole aim of inflicting pain on the offender. The proponents of the retributive theory sought only to punish the offender. It was hoped that by inflicting pain on the offender as repressive means allowed or stipulated both the offender and the entire society in general would be deterred. However, this

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proved to be untrue. Retributive punishment did not yield the desired effect. It was argued that such punishment was inhuman, barbaric and tended to focus on the offence committed rather than the offender.These criticisms of the retributive theory led to a new approach to punishment. Punishment began to be seen as that which should not only be retributive but also produce a desired effect upon both the offender and the society in general. This saw the evolution of utilitarian theories markedly those of reformation, incapacitation or restraint and reintegration.Focus shifted from the offence to the offender. It was argued that the offenders did not necessarily have a criminal mind but that other factors led to criminality. These included social, economic and even political factors. In order to rid society of crime it was therefore necessary to address such other factors that influenced criminality. Punishment was therefore viewed as a curative measure. Thus, in addition to the other retributive forms of punishment – capital and corporal – there also evolved prisons which were intended for the solitary confinement of offenders. While in that condition prisoners were likely to meditate on their evil ways and change to better persons who were likely to reintegrate into society once their prison terms were over.With time, however, prisons, which were intended to remedy the defects of retributive forms of punishment changed for the worse. They became harbors for vice. Living conditions became inhuman. Offenders once out of prison were worse off. They became embittered against society and tended to revert back to crime. There was therefore need for the evolution of yet other forms of punishment that catered for the changing needs of society.Penologist today therefore advocate for non-custodial remedies such as probation, parole, discharge, community service orders, fines etc that seek to punish, rehabilitate and heal the offender in such a way that he will not revert to crime.They argue that capital punishment and corporal punishment are inhuman and barbaric and ought to be abolished while prison sentences should be maintained for serious offences only.

RETRIBUTIONThis is the most ancient method for dealing with offenders dating to the pre-classical period. It is retributive and revengeful in nature. This approach to punishment rests on the idea that a person whose conduct appears to have caused social harm should be held responsible for the harm. It is right that the wicked be punished. The punishments therefore tended to be more inhuman and sadistic. They usually consisted of banishment, mutilation of

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limbs, whipping, flogging branding, various forms of torture and death. There was usually no attempt to relate the nature of punishment to either the offence or the offender. In earlier times penal law allowed the infliction of greater injury on an offender that that which he inflicted on his victim.Later, penologists called for more humane treatment of offenders anad the older approaches were replaced by codes that advocated for nothing more than eye for an eye and a tooth for a tooth. Its proponents argue that punishment for wrongdoing is intrinsic in value. It is just notwithstanding any other benefits e.g. crime prevention. To them punishment should not be for any other purpose than restoring the moral balance that is disturbed by the crime. The imbalance would remain if the criminal goes scot-free. Punishing him would give satisfaction to the victim and society.According to Emmanuel Kant, the full moral balance is restored when the offender is punished and the victim compensated. In his view, punishment is a reward, compensation a kind of annulment to a crime.The basis of retribution seems to be societal revenge. An offender should be made to suffer not so much because it is good for him but because he deserves to suffer. According to Kant, “punishment must always be inflicted upon the offender for the sole reason that he committed a crime”.According to Sir James Stephen, “it is highly desirable that criminals should be hated, that punishment should be so contrived as to give expression to that hatred, and to justify it.” To these penologists punishment should fit the crime and the offender should get what he justly deserves.There are two components to the retributive theory:

VindicationThis is the sense of the society’s claim to amend for the harm done or for the outraged feelings. In its crudest form the first kind of vindication justifies punishment on the ground that it tends to satisfy the victim’s need for vengeance. More refined notions are the satisfaction of the victim’s sense of justice or the satisfaction of the feelings of resentment of the victim, his friends, as well as others who are aware of the crime.Bentham (Principles of Morals and Legislation)A kind of collateral end, which it (punishment) has a natural tendency to answer is that of affording a pleasure or satisfaction to the party injured, where there is one, and in general, to parties whose ill will whether on a self regarding account, or on account of sympathy or antipathy has been excited by the offence. This purpose, as far as it can be answered gratis, is a beneficial one. But no punishment ought to be allotted merely to this purpose, because (setting aside its effects in the way of control) no such

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pleasure is ever produced by punishment as can be equivalent to the pain. The punishment, however, which is allotted by other purposes, ought as far as it can be done without expense to be accommodated to this. Satisfaction thus administered to a party injured in the shape of a dis-social pleasure amy be styled a vindicative satisfaction or compensation.

Williams 1974 Crim LR 558Two young men who had been drinking pleaded guilty to buggery to a sheep.In handing down sentence, the trial judge stated as follows:“I fully appreciate that it is going to be a matter of comment about you for years to come and I think the kindest thing I can do is to visit upon you the outrage which I think anybody with decent feelings would feel about it so that nobody can say, in your village, that you haven’t paid for it.

Llewellyn Jones (1968) QB 429A deputy County Court Registrar was convicted of offences involving conversion of funds under his control belonging respectively to a crippled infant and a mental patient. The trial judge sentenced him to 4 years imprisonment. On appeal it was argued that heavy punishment was not called for on deterrent grounds, it was unlikely that the accused would ever again be in a position to commit such offences, and other deputy county court registrars scarcely needed powerful warning by example in order to deter them from converting funds under their control.

Court of Appeal“This Court is quite satisfied that this is not a deterrent sentence. It is a sentence which is fully merited, in a the opinion of this Court, as punishment for very grave offences, and as expressing the revulsion for the public to the whole circumstances of the case.”

FAIRNESSThis component emanates from the belief that there is a sense in which the criminal gains advantage over the law abiding citizen every time he commits an offence.This is especially so in cases of successful acquisitive crimes. In other cases it may also be argued that the law abiding citizen may have derived some satisfaction from committing the offence but they abstained especially where similar opportunities may have been available to them. Punishment in this case serves to demonstrate to the offender as well the law abiding citizen

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that threats of the law will take effect, and that taking advantage of the self restraint of others cannot be done with impunity.The question of fairness, is viewed as a matter between the state and the offender, the trend has therefore been that punishment of serious crimes should not be determined by the wishes of a particular victim. It therefore follows that if the sole aim of punishment was just vindication for the victim’s injury, then punishment ought not to be metted out where the victim forgives the offender. In general the courts therefore consider the victim’s attitude irrelevant to accused punishment because the accused has to be punished for flouting the law.

Hampton (1965) Crim. LR 564Hampton aged 27 years had been convicted of rape of an 18 year old girl. She had permitted familiarities on the occasion, but clearly did not consent to the intercourse and reported the incident to the police immediately afterwards. On hearing that Hampton had been sentenced to 3 years imprisonment, the girl wrote to the Court of Appeal saying that she was shocked by the result, that she had no idea that this would be the consequence of her action and that the had told the accused before the incident that she would have intercourse with him sometime in the future.The sentence was upheld and the Court of Appeal remarked as follows:“It might well be true that she had no idea of the serious view that the Courts take of the crime of rape on young girls. But her misgivings could not afford any justification for altering a sentence which was right in principle and in fact well deserved.”

In Buchanan (1980) Crim. LR 317The Court of Appeal upheld a sentence of two years for wounding with intent the woman with whom the appellant had been living, despite her express forgiveness and willingness to resume her life with him.According Sir Rupert Cross, in general the offender’s wickedness nor his danger to others is reduced by the forgiveness of this particular victim, and the Courts are usually right to approach these cases with the interests of society as a whole as a the primary consideration. Consider this approach within the context of the statutory provisions for the production and consideration of victim impact statements in Kenya.

PROPORTIONALITYWhereas, vindication and fairness provide partial answers to the question of why punish. Proportionality attempts to address the issue of how much

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punishment should be inflicted. The general answer is that it be as much as is deserved for the offence no more no less. How is this to measured. Is it in reference to quantity of punishment and moral deserts of the offender. Sentencers generally think in terms of a complex notion which they will frequently describe as the “gravity of the offence.” Such a definition may reasonably include wickedness and the extent that punishment is measured proportionately to the wickedness implicit in the definition of the offence, or indicated by particular circumstances. Gravity may also include reference to the amount of harm done by the offender and the extent that such harm was inflicted intentionally or negligently. Whereas, these may fall within the ambit of moral desert, gravity is sometimes measured by other considerations which have feature social rather than moral significance. Example is the alarm caused by a particular category of offence, i.e. burglary and handling are not morally worse sentences than theft, but the maximum sentences are higher each case.Criticism of this exercise of attempting to come up with the retributive theory in this regard is that an attempt to inflict pain commensurate to the crime is a futile endeavor to equate incommensurables. In other words what is the sense of taking about proportionality of fine to term of imprisonment to assault or theft.Hegel in the Philosophy of Right has tried to justify and explain this approach. His point was that though they may differ greatly in form, crime and punishment resemble each other in that they each a species of injury.“…the universal feeling of nations and individuals about crime is and has been that it deserves punishment, that as the criminal has done, so should it be done to him…But a great difficulty has been introduced into the idea of retribution by the category of equality…….…….is easy enough from this point of view to exhibit the retributive character of punishment as an absurdity (theft for theft, robbery for robbery, an eye for an eye, a tooth for a tooth – then you can go on to suppose that the criminal has only one eye or no teeth)….Value, as the inner quality of things which in their outward existence are specifically different from one another in every way, is a category which has appeared already, in connection with contracts, and also in connection with injuries that subject of civil suits….In crime, as that which is characterized at bottom by the infinite aspect of the deed, the purely external specific character vanishes all the more obviously, and equality remains the fundamental regulator or the essential thing, to wit the deserts of the criminal, though not for the specific external form which the payment of those deserts may take. It is only in respect of that form that

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there is plain inequality between theft and robbery on the one hand, and fines, imprisonment, e.t.c on the other. In respect of their ‘value’, however, i.e. in respect of their universal property of being injuries, they are comparable.

Even if crime and punishment are each regarded as species of injury, there remains the question of the feasibility of measuring proportionality between them in terms of magnitude of a fine or the duration of a prison sentence. The procedure would entirely be unfeasible if its object were thought of as the production of a precisely correct sentence for each offence in isolation from all others. But it is perfectly feasible if the object is recognized as the attempt to equate the size of a fine or length of prison term to the gravity of the particular category of offences with other categories (theft and murder0 and the gravity of the circumstances under which the offence was committed with offences of same category ( rape where the victim is viewed to have acted to some extent as a temptress as contrasted with rape in which the victim was waylaid and subjected to great violence.

Hegel states as follows“Reason cannot determine, nor can the concept provide any principle whose application could decide whether justice requires for an offence (i) a corporal punishment of forty lashes or thirty-nine, or (ii) a fine of five dollars, or four dollars ninety-three, four etc cents, days, or (iii) imprisonment of a year three hundred and sixty-four, three, etc, days, or one year and one, two , or three days. And yet injustice is done at once if there is one lash too many, or one dollar or one cent, one week in prison or day, too many or too few.”Hegel acknowledged that allowance has to be made for an element of arbitrariness, i.e. the fact that a decision has to be made one way or the other within certain fairly clearly defined limits. Usually courts are quick to react where such limits are exceeded.

Disbrey (1967) Crim LR 431The appellant was sentenced to 3 years imprisonment for receiving and fraudulently using a stolen excise license. Nothwithstanding his bad record and the fact that the offence was committed in the course of his employment, the sentence was reduced to 6 months.Salmon LJ stated thus:“This court does not want to minimize the seriousness of the offences of receiving excise licences and using them fraudulently, but to send a man to

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prison for three years for doing that seems to this Court to be beyond reason.”

Riddle and StevensThe accused persons were sentenced to fines of 20 sterling pounds for assaults causing actual bodily harm, they appealed against conviction but not sentence.

Salmon LJ“No doubt there are crimes against property which, in exceptional circumstances, enable justice to be tempered by mercy and first offenders to be treated with extreme leniency. But crimes of violence are altogether different in kind. These appellants were members of a gang which in brutal and cowardly fashion, set on a man standing alone, and proceeded to kick him as he lay unconscious…..In such circumstances the appellant would, or should have been sentenced to long terms of imprisonment…They are all young with no previous convictions. Even so in circumstances such as these to impose the most derisory fines of 20 and 25 is a travesty of the proper administration of justice.”The retributive theory is grounded on a number of assumptions;

a) That the culpability or responsibility for the an offence is punished and it is hoped that the penalty given produces equivalent satisfaction to the aggrieved party,

b) That the punishment is similar or as close as possible to the injury occasioned on the victim;

c) That the criminal is punished because he was fully responsible and he committed the offence with full knowledge;

d) That the criminal has benefited from the crime.

The theory has a number of shortcomings;a) At the intellectual level, retribution is a dying theory. Modern penal

theory is based on the idea of corrective or rehabilitative measures and cannot tolerate bloddy methods of punishment. Modhern human rights lobbyists are fighting for the abolition of punishment which involves physical torture. Many forms of punishment based on retribution like capital punishment and corporal punishment are being phased out.

b) The fact that a person has committed a crime does not always mean that the person has a truly criminal mind i.e. that he is inclined to evil

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or immoral acts. Circumstances may have an effect on the person e.g. poverty, age, state of mind.

c) The victim may not be interested in revenge. Thus revenge may not achieve Kant’s moral balance.

d) There being no foolproof method of determining those who are guilty, vengeful punishment may be directed at the innocent.

UTILITARIAN THEORIESThe underlying assumption of these theories is that crime must be prevented as economically in terms of the suffering of the offender as possible.

The objectives of punishment according to this theory is a) to make the guilty man or the offender a better

person and by extension the community better;b) to improve society by either isolating or reforming

the offenderThey justify punishment only if it can be shown to be of some utility to the society. It is a curative theory. It is supported by thinkers such as Plato, Aristotle, and Mahatma Gadhi, who actually saw punishment a bitter pill that would cure all criminal tendencies. The are various theories of punishment falling under this broad category, including deterrence, public education, disablement and reformation as well as prevention.

DETERRENCEThis is the preventive effect that actual or threatened punishment has on an offender or potential offender in a given society. It is an ancient theory. John Salmond believes that punishment must be deterrent. The main aim of criminal law should be to make the wrongdoer an example and warning to all who are like-minded.William the Conqueror of England is reported to have decreed that “no one shall be killed or hung for misdeed but rather that his eyes be plucked out and his feet, hands and testicles cut off so that whatever part of his body remains will be a living sign to all of his crime and iniquity”.There is a close connection between deterrence and retributive forms of punishment. Retributive punishment is believed to have some deterrent value. Deterrence is meant to reduce crime and for this reason some

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penologists argue that the harsher or more horrid the punishment the more effective the deterrence.Cesare Beccaria the Italian criminologist argued against the severity of punishment saying that punishment was not to provide a social revenge on the criminal and it was not the severity but the certainty and expedition in punishment that secured the best results for deterrence. Deterrence is at two distinct levels – individual and generalIndividual deterrenceThe idea here is that the offender should be given such an unpleasant time that through the fear of a repetition of punishment he will never repeat his conduct. There are limiting factors however. The retribution theory insists that punishment should not be disproportionate to the offender’s deserts, the utilitarian insists that the punishment must be no more than is necessary to achieve its deterrent effect, sheer expediency on the other hand insists that the punishment shall not be such as to make the offender an object public sympathy. Rev Sydney Smith (1771 -1845) whose views on punishment were notoriously harsh was aware of these limitations and stated thus:“When we recommend severity, we recommend, of course, that degree of severity which will not excite compassion for the sufferer and lessen the horror of the crime. That is why we do not recommend torture and amputation of limbs.” Cited in the “The Modern Approach to Criminal Law” by Radzinowcz and Turner at page 40.The current penological view is that one sentence of imprisonment is enough for the majority of offenders: It is widely viewed by conjecture that the first prison sentence is the most traumatic. The initial impact of prison life is therefore thought to be a powerful individual deterrent.At a personal level punishment serves as a lesson and warning to the offender himself. It removes him from the environment where he would commit crime (restrains him).

GENERAL DETERRENCEWhen reliance is placed on general deterrence, the aim of punishment is thought of as the discouragement of like minded persons from committing offence by the threat of punishment and the example of the punishment of the offender. At a general level, it deters other like minded persons from committing similar offences. This theory is illustrated in the case of R vs Atma Singh s/o Sharda Singh 1943 E.A.C.A 69The appellant an elderly Sikh man appealed against conviction and sentence on the charge of causing grievous bodily harm to his wife. The brief facts

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were that the appellant’s wife had been enticed by another man, upon which she left their matrimonial home in Mombasa, to live with her new man in Nairobi. The appellant followed her there and managed to take her back to Mombasa, and thereupon cut off her nose and ears. He was tried and sentenced to 7 years imprisonment with hard labour. On appeal the sentence was affirmed. Describing the assault as barbaric and therefore one that needed punishment that would lead to deterrence, the judges further stated that for purposes of deterrence a lesser sentence would be misunderstood.In R vs Mudanya Kazengwa 1979 KLR 48, the accused an Inspector of Weights was charged with Corruption c/s 3 of the then Prevention of Corruption Act. The facts were that he corruptly received Kshs 600 as inducement not to prosecute a man for hoarding tea. Under the section the offence carried a maximum penalty of seven years imprisonment or a fine of Kshs 10,000 or both for first offenders. He pleaded guilty and was sentenced to a fine of Kshs 5,000 or 6 months imprisonment. The magistrate based the sentence on various mitigating factors including;

c) the accused was likely to loose his jobd) the accused had a family to supporte) he was repentant and apologetic

On appeal it was held that the sentence meted out by the lower court could serve to encourage the commission of the offence. The sentence was set aside and replaced with one of 4 years imprisonment.

Daher, 1969 53 Cr.App R 490A 19 year old Lebanese student was sentenced to 3 years for importation of cannabis. Daher, who was previously of good conduct had been induced to become a runner of some Lebanese drugs exporters by the promise of money and a short holiday in England in addition to the payment of his airfare; they also promised assistance to his impoverished family. On arrival in England he was found with cannabis worth 3500 sterling pounds in his suitcase.

Salmon J“If a young man such as the appellant is given six months suspended sentence, back he goes whence he came and the news spreads like wildfire amongst all students. ‘Well, this is not a bad way of trying to get money because if it comes off you will just be sent home again.’ On the other hand, if it is known among potential offenders in the Lebanon and elsewhere that, if they are caught attempting to smuggle drugs into this country, they will be

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severely dealt with, there may be a remarkable lack of enthusiasm for enterprises of this kind and great difficulties put in the way of people who run this filthy trade.” There is however, growing skepticism about the deterrent effect of either the threat or example of punishment. There are difficulties of conducting satisfactory research into the deterrent effect of particular sentencing policies. A survey of young men carried out by Willcock and Stokes in 1968, suggested that most people overate their chances of detection and rank fear of what others will think above fear of punishment as a deterrent. Courts however, continue to find usefulness for general deterrence in sentencing.

Long deterrence/denunciation or educationThe deterrent theories already considered so far may be said to be deterrent in the short term. This is in the sense that the threat or example of punishment is supposed to operate immediately on those contemplating crime. The educative or denunciative theory may be described as long term in nature. It justifies punishment on the ground that it helps maintain people’s standards. The fact that people are punished for crimes is believed to build abhorrence for it over a period of years and thus to reduce the number of those who would even remotely consider it. A proponent of this approach is Sir James Stephen ( History of Criminal Law vol. II at page 79)“ If in all cases criminal law were regarded only as a direct appeal to the fears of persons likely to commit crimes, it would be deprived of a large part of its efficacy, for it operates, not only on the fears of criminals, but upon the habitual sentiments of those who are not criminals. A great part of the general detestation of crime which happily prevails among the decent part of the community in all civilized countries arises from the fact that the commission of offences is associated in all such communities with the solemn deliberate infliction of punishment wherever crime is proved.”Another proponent of this contention that punishment may be justified as an attempt at the moral education of the offender as well as others; is Dr. A.C. Ewing in The Morality of Punishment published in 1929 stated as follows:“Now the existence of a penal law is an impressive condemnation of the practice prohibited by it. But surely this solemn, public condemnation on behalf of the community will have some effect not only on those actually punished but on others also. If it may help the offender to realize the badness of his action, may it not help others to realize this badness before they have committed the kind of act in question at all? This must not be

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confused with a purely deterrent effect. A man who abstains from crime just because he is deterred abstains through fear of suffering and not because he thinks it wicked; a man who abstains because the condemnation of the crime by society and the state has brought its wickedness home to him abstains from moral motives and not merely from the fear of unpleasant consequences to himself.”The negative version of this theory is that failure to punish a crime adequately will depreciate its seriousness. This could partly explain the remarks made by judges in the cases that we have already looked at.In this regard the theory has both retributive and utilitarian features

Goodhart, The English Law and the Moral Law pg 39“Retribution in punishment is an expression of the community’s disapproval of crime, and if this retribution is not given recognition, then the disapproval may also disappear.”A question that may arise is what justifies the use of a criminal to the good of others especially through the infliction of pain.According to Sydney Smith (Modern Approach to Criminal Law, pg. 40)“When a man has been proved to have committed a crime it is expedient that society should make use of that man for the diminution of crime. He belongs to them for that purpose.”Sir Rupert Cross considered Sydney’s answer as being wrong and states that;“The right is that the criminal is not being used merely as a means. He is being given his just deserts although, in the view taken in this book, there is no reason why she should receive them at the hands of an earthly power if crime is not reduced thereby.”The difficulty with this approach is that it is not clear how these assumptions by penologists on the moral deterrence can be proved to be either right or wrong. Secondly as already indicated elsewhere it is difficult to measure how society or the community at large accesses the information required to enable this educative approach to crime. It is one thing to assume that and declare that ignorance of the law is no defense, and another to assume that people in actual fact do know the law and are guided especially in their criminal activities by such knowledge.

DISABLEMENT/INCAPACITATION/PREVENTIONThis theory is connected to the deterrence theory. It is founded on the assumption that the isolation or incapacitation of an offender renders him incapable of committing crime and rids society of evil. Incarceration or

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imprisonment of offenders isolates them from the rest of society and from the circumstances that led him to crime. The death penalty also disables by permanently incapacitating the offender. Its main avenue for operation is the prison and related institutions.The application is best illustrated in the case of Ndurugo s/o Karuga vs Republic 1950 EACA 50 where the accused was charged with the offence of stealing one cow. He was sentenced to 10 years imprisonment with hard labor. He appealed against both conviction and sentence. The conviction was upheld but sentence was reduced to 5 years. In the opinion of the appeal judges, the accused if let loose would commit more serious offences as he had 21 previous convictions. The sentence was thus intended to disable or incapacitate him to ensure security to the community’s property.The theory has several weaknesses;

a) It merely postpones crimeb) It is based on the prison system with all its weaknessesc) It presupposes that no crime occurs in prisond) It encourages longer and unnecessary punishment

REFORMATIVE/REHABILITATIVE APPROACHThere are two aspects to the reformative approach;

a) that reform can come through the punishment itself, the pain of punishment is therefore expected to have reformative merits on its own. Sir Rupert Cross remarks that this view is unfashionable and that nothing can be said about it beyond observing that solitary confinement is an example from former times, the theory being that suffering the loss of liberty in solitude would induce remorse, repentance and reform.

b) The idea of reform as concomitant to punishment. This is the prevailing theory for sentences such as probation where reform is at the forefront to the extent that probation in many quarters is not viewed as punishment at all, but merely as a measure of rehabilitation.

Rehabilitation and reformation are one the major objectives of punishment and very fashionable amongst penal reformers. It finds basis on the notion that offenders are social misfits or persons who are socially maladjusted. Punishment is therefore seem as a means of re-socializing such persons with the aim of making them useful members of society. The problem with reformation is that it is a long and expensive process which is not guaranteed

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to produce the desired effect or result. Arguments in favour of reformation include:

a) reforming the criminal provides the state with opportunity to control crime in future;

b) the reformation process is also deterrent and thus an effective condemnation of crime

c) it creates resources for the state for training the offender – prison etc

d) it enables the criminal to stay within society – probation , parole, discharge etc provide s the best opportunity for re-socialization of the offender

Weaknesses evident in the theory are:a) Reformation, in most cases, is supposed to occur in prison or jail. The

prison environment is not conducive to reformation as it mixes the theories or objectives of retribution and deterrence with reformation. The prison atmosphere generally fosters hatred and bitterness yet the same is expected to be a correctional institution.

b) To achieve the objective of reformation prisoners are put to all kinds of programs – carpentry, tailoring, hairdressing, gardening, pig keeping etc. These programs however, do not help reform the offender as there does not necessarily exist a causal connection between lack of skills and criminality. It is only a small class of offenders who lack skills and it does not necessarily follow that they engage in crime due to lack of skills.

c) Reformation is an expensive process. It demands heavy infrastructure. In Kenya reformation is directed towards probation, parole, conditional and unconditional discharge, bonds to keep the peace, community service orders. The success of these programs demands financial as well as human resources and facilities for training.

Opinion varies as to the usefulness and appropriateness of using prisons as a mechanism for reformation. The Advisory Council on the Penal System (UK, 1974) stated as follows;“Prolonged and repeated imprisonment is destructive of family relationships and, by encouraging the prisoner’s identification with the attitudes of the prison community, increases his alienation from normal society. In addition, long-term institutionalization is all too likely to destroy a prisoner’s capacity

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for individual responsibility and to increase the problems he must face when he returns to society” (Length of Prison Sentences, para. 10).It is therefore rare to find a situation where courts would impose a term of imprisonment primarily for reformative purposes. It is generally believed that the best method for securing reform is through non custodial sentences.The dilemma that judicial officers face is usually that of conflicts between the issue of general deterrence and reform and between reform and retribution and reform. This is because whereas, reform or rehabilitation focuses primarily on the offender i.e. it is mostly for the good of the offender, general deterrence and retribution focus on the offence, which is viewed as a violation against the society as a whole and which therefore requires punitive action. So it may be argued that in many cases, the maxim, “punish the offender rather than the offence” is only sound up to a point. And that there are many cases where the rights of the offender or the protection of the public require that the sentence should be concentrated on the offender.In some instances, for example the courts may allow a longer prison sentence where there are facilities for the treatment of the offender, and it has been established that the treatment or therapy requires a minimum time frame which would then become a threshold for the minimum length of sentence. But even this notion is not that well settled.Two English cases demonstrate the difficulties;

Ford (1969) 3 All E.R. 189Ford had been sentenced to 27 months imprisonment for housebreaking and larceny, although his co-accused had only been given 12 months. The difference was largely due to the fact that Ford was an alcoholic and it was felt that the additional time in prison was necessary for the completion of his cure. His sentence was reduced to 12 months by the Court of Appeal.“In relation to offences of dishonesty, sentences of imprisonment, except where there is an element of protection of the public, are normally intended to be the correct sentence for the particular crime and not to include a curative element. This Court wishes to make it clear that what it is now saying has nothing to do with special cases such those of possessing dangerous drugs or cases where protection of the public is involved.”

Moylan (1970) QB 142, 3 All ER 783Moylan was sentenced to 18 months suspended sentence for larceny. He was subsequently convicted of causing malicious damage and being drunk and disorderly and was given 3 months immediate imprisonment. The judge

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also brought the suspended sentence fully into operation, partly in hope of curing Moylan’s alcoholism. The Court of Appeal held that this was wrong and activated the suspended sentence for 6 months only.“In our judgment, in cases of dishonesty where there is, as it were, a background of alcoholism in respect of the accused, the Court must first determine what are the limits of a proper sentence in respect the the offences charged. Within these limits it may be perfectly proper to increase the sentence in order to enable a cure to be undertaken whilst the accused is in prison. But on the authority of Ford, it is clear that it is not correct to increase above that within the appropriate range of the offence itself merely in order to provide an opportunity of cure.”It is interesting to note that whereas, prisons are increasingly wishing themselves to be viewed as reformative and rehabilitative institutions, there judicial thought and practice is clearly not taking the same track and especially for “run-off-the mill” type offences.The challenges are even more evident in cases where the offences are intrinsically serious but are committed by relatively youthful offenders with previously relatively good conduct. Such offenders would normally lay claim to reformative and rehabilitative rather than punitive measures.

Newbury and Jones (1976) 62 Cr. App. Rep 291A sentence of 3 years detention was thought appropriate for a youth of 15 who pushed part of a stone off the parapet of a bridge, causing the death of a guard traveling in a train which passed beneath.

Elvin (1976) Crim. L.R 204 A sentence of 4 years imprisonment upon a youth of 17 years with no previous convictions who had set fire to school buildings was upheld, as a general deterrent to discourage others from committing what was a particularly rife type of crime.

Smith and Wolard (1978) 67 Cr. App. Rep. 211The Court here even said that general deterrence should be placed before reform when sentencing offenders for burglary of houses.What can be seen from the discussions is that theories exist about sentencing and what principles are to be adopted. However, the reality of these theories find expression in the real cases that go before the courts and especially where those courts find it necessary to explain or expound on what the sentences are intended to achieve.

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A case in point where the English Court of Appeal discussed these issues extensively is

Sargeant (1974) Cr. App. Rep. 74The appellant was employed as a doorman at a discotheque. He observed a customer making a nuisance of himself, went over to the customer and butted him. From this action general affray resulted, although the appellant who had received a painful blow in return took no further part. He was sentenced to 2 years imprisonment.

Lawton LJWhat ought the proper penalty to be? We have thought it necessary not only to analyze the facts, but to apply to those facts the classical principles of sentencing. Those classical principles are summed up in four words: retribution, deterrence, prevention and rehabilitation. Any judge who comes to sentence ought always to have those four classical principles in mind and to apply them to the facts of the case to see which of them has the greatest importance in the case which he is dealing.I will start with retribution. The Old Testament concept of an eye for an eye and a tooth for a tooth no longer plays any part in our criminal law. There is , however, another aspect of retribution which is frequently overlooked: it is that society, through the courts, must show its abhorrence of particular types of crime, and the only way in which the courts can show this is by the sentences they pass. The courts do not have to reflect public opinion. On the other hand courts must not disregard it. Perhaps the main duty of the court is to lead public opinion. Anyone who surveys the crime scene at the present time must be alive to the appalling problem of violence. Society, we are satisfied, expects the courts to deal with violence. The weapons which the courts have at their disposal for do so are few. We are satisfied that in most cases fines are not sufficient punishment for senseless violence. The time has come, in the opinion of this Court, when those who indulge in the kind of violence with which we are concerned in this case must expect custodial sentences.But we are also satisfied that, although society expects the courts to impose punishment for violence which really hurts, it does not expect the courts to go on hurting for a long time, which is what this sentence is likely to do. We agree with the trial judge that the kind of violence which occurred in this case called for a custodial sentence. This young man has had a custodial sentence. Despite his good character, despite the excellent background from which he comes, very deservedly he has had the humiliation of hearing

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prison gates closing behind him. We take the view that for men of good character the very fact that prison gates have closed is the main punishment. It does not necessarily follow that they should remain closed for a long time.I now turn to the element of deterrence, because it seems to us the trial judge probably passed this sentence as a deterrent one. There are two aspects of deterrence: deterrence of the offender and deterrence of likely offenders. Experience has shown over the years that deterrence of the offender is not a very useful approach, because those who have their wits about them usually find the closing of prison gates an experience which they do not want again. If they do not leran that lesson, there is likely to be a high degree of recidivism anyway. So far as deterrence of others is concerned, it is the experience of courts that deterrent sentences are of little value in respect of offences which are committed on the spur of the moment, either in hot blood or in drink or both. Deterrent sentences may very well be of considerable value where crime is premeditated. Burglars, rovers and users of firearms and weapons may very well be put off by deterrent sentences. We think it unlikely that deterrence would be of any value in this case.We come now to the element of prevention. Unfortunately it is one of the facts of life that there are some offenders for whom neither deterrence nor rehabilitation works. They will go on committing crimes as long as they are able to do so. In such cases the only protection which the public has is that such persons should be locked up for a long period. This case does not call for a preventive sentence.Finally, there is the principle of rehabilitation. Some 20 to 25 years ago there was a view abroad, held by many people in executive authority, that short sentences were of little value, because there was not enough time to give in prison the benefit of training. That view is no longer held as firmly as it was. This young man does not want prison training. It is not going to do him any good. It is his memory of the clanging of prison gates which is likely to keep him from crime in the future.”A number of considerations from what we have discussed in the various principles or justifications for punishment arise from the passage;

1) In giving regard to public opinion when considering sentence, Lord Justice Lawton draws attention to the denunciatory aspect of punishment and treats as retribution, in similar fashion to Sir James Stephen (Liberty, Equality and Fraternity (London, 1874), pg 162-2, writing that common crimes are punished; “for the sake of gratifying the feeling of hatred, - call it revenge, resentment, or call it what you will – which

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the contemplation of such conduct excites in healthily constituted minds.”

2) Although there is a clear link between retribution and denunciation, this justification seems justified to keep an approximate correspondence between the degree of popular abhorrence for certain offences and the level of the sentence is important in order to reinforce public attitudes towards those offences.

3) He places little faith in individual deterrence as a reason for making a particular sentence more severe than it might be on retributive grounds; he argues that general deterrence may be more justifiable in certain cases. His arguments seem to be more concerned with practical utility rather than theoretical considerations. So that it may be more practical to aim at deterring premeditated/planned crimes than those that are impulsive ones. One may argue that for purposes of prevention of crime it might be more effective to have a system that imposes high penalties for all offending, planned or impulsive, than to have one that reserves higher penalties only for the planned ones. The question would then be whether the extra amount of crime reduction gained by treating the two types of offences in a similar is justified for the imposition of extra suffering on those committing impulsive crimes, the utilitarian would not be persuaded, nor would retributivist who regard such impulsive crimes as less wicked than premeditated offences

The sentence was considered too long and reduced to 8 months imprisonment. Clearly the court must have considered this to be appropriate for one who had not been to prison before and therefore individually deterrent as well as appropriately retributive in view of the impulsive nature of the violence.

SENTENCING IN KENYAThe Kenyan Penal Code provides under Section 24 for the following forms of punishment.

a) Deathb) Imprisonment

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c) Detention under the Detention Camps Actd) Corporal Punishmente) Finef) Forfeitureg) Payment of compensationh) Security to keep the peace and to be of good behaviour i) Any other punishment provided by this Code or any other Act

DEATHThe prevalence of the death penalty has varied a great deal in different societies. In the medieval period the most common techniques for the carrying out of the death penalty was by burning, boiling in oil, breaking at the wheel, the iron coffin, drowning and impaling. In Switzerland impaling and immuring were practiced until about 1400 and death by drowning until about 1600. The last case of burning at the stakes in Berlin was in 1786. In ancient Rome the death penalty was inflicted on slaves and other non-citizens for various offences.In England in the early 1700s the death penalty was frequently inflicted for religious offences, but most of the later inflictions were for offences against property and in some instances for very trivial offences. It is reported for example that in 1814, three boys aged, eight, nine and eleven were sentenced to death for stealing a pair of shoes. Other offences for which the death penalty was applied in addition to theft, were, poaching, pick-pocketing etc. During the early part of these periods, the corpse was gibbeted, that is remained hanging in chains, and was sometimes soaked in tar so that it would remain for a long time as a warning to evil doers.Some attempts were made by reformists to at least do away with the more gruesome methods of carrying out of capital punishment for the offence of treason; In 1814, one of these reformers Romilly tried in vain to substitute simple hanging as society reaction to treason in place of the penalty of hanging, cutting down alive, disemboweling, cutting off the head and quartering the body. During the course of the last century there has been a distinct movement away from the death penalty, a number of countries have abolished entirely whereas in others the offences for which the death penalty is mandatory has been limited mostly to murder.

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The other trend has been to have a permissive as opposed to mandatory death penalties. This where courts and juries have been given powers to decide whether one found guilty of a capital offence must be executed.In countries like the US where some states have retained capital punishment, the manner of execution has also been modified to make less prolonged and less brutal i.e. the introduction of the electric chair, lethal injection as more civilized and swifter ways of execution.

In Africa, the application of the death penalty also varied from place to place:

a) Pre-colonial Kikuyu customs provided for burning of murderers and those who stole habitually

b) Banyankore – death penalty was reserved for premeditated homicide and pre-marital pregnancy

c) Basoga – stealing ripe bananas would result in unripe bananas being inserted into the offenders rectum until some internal organ ruptured and he would bleed to death

d) Kingdom of Benin – burning alivee) Buganda – adulteresses could be put to death.

The death penalty is prescribed for the following offences:a) Treason C/S 40(3) of the Penal Codeb) Murder C/S 204 of the Penal Codec) Robbery with violence C/S 296(2) as well as Attempted robbery with

violence C/S 297.

EXCEPTIONSUnder Section 211 of the Penal Code, “Where a woman convicted of an offence punishable with death is found in accordance with the provisions of Section 212 of the PC to be pregnant, the sentence to be passed on her shall be of imprisonment for life instead of death sentence”.

Section 212,The woman herself can allege that she is pregnant or the court which convicts may order that the question of her pregnancy be determined, it shall be determined by the trial judge.Evidence may be laid by the woman herself or the republic, and such evidence must be proved affirmatively to the satisfaction of the judge that the woman is indeed pregnant. It the woman is dissatisfied with the judge’s finding, and then she can appeal to the court of appeal.

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Section 25 (2)“Sentence of death shall not be pronounced on or recorded against any person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the President’s pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct, and whilst so detained shall be deemed to be in legal custody.”25(3)When a person has been sentenced to be detained during the President’s pleasure under subsection (2), the presiding judge shall forward to the President a copy of the notes of evidence taken on trial, with a report in writing signed by him containing any recommendations or observations on the case he may think fit to make.Under LN 579/1963 – this power is delegated to the Minister and to the Permanent Secretary of the Ministry for the time being responsible for prisons.Section 166 of the Criminal Procedure CodeWhere it is shown that at the time of committing a capital offence the offender was insane then he shall be detained at the President’s pleasure.Manner of ExecutionUnder Section 69 of the Prison’s Act it is provided as follows;“When any person is sentenced to death, he shall be hanged by the neck until he is dead and the sentence shall be carried out in such manner as the Commissioner shall direct.”The death sentence wherever it is provided for in Kenya is a mandatory sentence. Once the court finds one guilty of a capital offence, there is no option of any other sentence except for the exceptions discussed above. There is no discretion granted to the court.The courts have found particular difficulties with the application of the law with regard to robbery with violence.Definition of robberySection 295 of the Penal CodeAny person who steals anything, and, at or immediately before or immediately after the time of stealing it, uses or threatens to use actual violence to any person or property in order to obtain or retain the thing stolen or to prevent or overcome resistance to its being stolen or retained, is guilty of a felony termed robbery.Section 296 (1)

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Any person who commits the felony of robbery is liable to imprisonment for fourteen years together with corporal punishment not exceeding twenty-eight strokes.296(2)If the offender is armed with any dangerous or offensive weapon or instrument, or is in company with one or more other person or persons, or if, at or immediately before or immediately after the time of the robbery, he wounds, beats, strikes or uses any other personal violence to any person, he shall be sentenced to death.Subordinate courts have tended to consider the degree of violence and gravity of injuries against the victim to determine whether or not one is guilty under Section 296(2). For example, where the offender is in the company of others, they are armed, but do not use the arms to injure the victims. The Court of Appeal has on the other hand been very insistent that the offence is sufficiently proved once those ingredients exist and it is immaterial that no actual harm was caused.Justification for the Death Penalty

1. It is argued that it is deterrent. It disables the accused completely in that he would never be in a position to commit a similar offence or any other offence for that matter. It deters others, some proponents of this view suggest that it would be even more effective if carried out in public. (This is the mode preferred by successful coup plotters in Africa of the 60’s, 70’s and 80’s).

2. In the majority of cases, those who are sentenced to death are those who are beyond the hope of rehabilitation such that imprisonment would be a waste of taxpayer’s money. It is argued that execution is less costly.

3. It is more humane to hang a person than to imprison them for life4. Without the death penalty, society would return to lynching, even for

petty offenders5. The death penalty is sanctioned by the Lord. Genesis 9 v 6 “Whoever

sheds human blood, by man shall his blood be shed, for in the image of God made He man.” Exodus 21 v 13 “The punishment shall be life for life.”

Case against1. Death is a not a punishment at for the victim does not live to learn to

avoid wrong doing.

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2. Studies have shown that the death penalty does not have a unique capacity to deter. Thus, its deterrent value is overrated and cannot justify its retention.

3. It is contrary to the highest ideals of civilized communities, it is cruel, inhuman, unkind, degrading

4. For Christians, it contravenes the commandment ‘Thou shall not kill’5. Society cannot get rid of murderers by being a murderer itself6. It is irrevocable – there is a real risk of executing innocent persons7. Hanging is hangover from the barbaric past8. It is exploited by oppressive regimes to repress and stamp out

opponents9. It is inflicted mostly on the weak in society – the most vulnerable

members of society – i.e. the poor who are least able to access legal representation.

IMPRISONMENTThis is the most common form of punishment after fines. The Penal Code provides for maximum sentences, but the regime of minimum sentences was done away with.The courts as a result of the amendments to those sections that previously carried minimum sentences now have total discretion with regard to penal offences to award any duration from 1 day to the prescribed maximum. However, a court whose jurisdiction is limited can only sentence up to a maximum of their jurisdictional limit, i.e. a Resident Magistrates maximum sentencing jurisdiction is 7 years, so if they try an offence such as simple robbery whose maximum sentence is 14 years, such a resident magistrate can only sentence up to 7 years.It is a generally accepted principle of sentencing that in awarding sentences regard should be had that the maximum sentences are reserved for the worst cases, i.e. those cases that are exceptionally heinous. This principle was recognized in the UK as early as 1932, by the Dove Wilson Report on Persistent Offenders“In order that there may be a proper grading of sentences to fit the many degrees of gravity presented by the various cases which fall within the same legal category, it is necessary that the maximum sentence authorized by law should be reserved for the rare offences which are exceptionally heinous, that sentences approaching the legal maximum should be reserved for offences falling within the next degree of gravity, – and so on, with the result that ordinary offences (such as form the great majority of cases coming before the Courts) the heaviest sentence which the Court feels

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justified in imposing is usually far below the maximum sentence authorized by law for the category of offence in question.”

REMISSIONSection 46(1) of the Prison’s Act provides that convicted criminal prisoners sentenced to imprisonment, whether by one sentence or consecutive sentences for a period not exceeding one month, may be industry and good conduct earn a remission of one-third of the sentence or sentences.Remission is therefore discretionary based on good conduct and industry and is not available;

1. a prisoner serving a sentence of less than one month2. a prisoner sentenced to one month imprisonment3. a prisoner detained during the President’s pleasure

Remission can be denied on the following grounds;1. The interests of the prisoner’s own reformation and rehabilitation2. that the Minister in charge of internal security considers that in the

interests of public security or public order not to release the prisonerRemission can be lost as a result of its forfeiture for an offence against prison discipline.Remission cannot be earned for the following periods;

1. any period spent in hospital through the prisoner’s own fault, or while malingering

2. any period during which the prisoner is undergoing solitary confinement as a punishment

Not withstanding all these stipulation, the Minister in charge of Prisons, on the recommendation of the Commissioner, may grant a further remission on the grounds of exceptional merit, permanent ill health or other special grounds.The Commissioner also has powers to restore forfeited remission in whole or in part.It should be noted that remission is intended to be an incentive for the offender to reform within prison, this evidenced by the provision of Section 46 (2) of the Act to the effect that; For purposes of giving effect to the provisions of subsection (1) of this section, each prisoner on admission shall be credited with the full amount of remission to which he would be entitled at the end of his sentence if he lost no remission of sentence.PAROLEUnder Section 49 of the Prison’s Act provision is made that “Within three months of the date upon which a prisoner serving sentence of or not

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exceeding four years is due for release, the Commissioner may allow such prisoner to be absent from prison on parole for such length of time and upon such conditions as the Commissioner may specify.The Commissioner has powers to recall a prisoner who is on parole at any time.Form 3 Parole Licence and ConditionsSpecifies, that the licence will indicate the place to which the parolee will proceed, and that they shall not move from that address without consent of the Commissioner,Further there is a condition that they shall abstain from any violation of the law and will not associate with persons of bad character,They are required to carry the licence and to produce it if required by a prison or police officerIt further specifies the Prison to which the parolee may report in case they require advise or assistance.The conditions have to be explained to the parolee in the presence of a prison officer who has to certify so, the parolee is also required to sign or mark the licence signifying that it has been explained and they have understood.There is provision for affixing the parolee’s photograph and fingerprints.It is noteworthy that not much has been done with a view to exploiting these provisions especially in line with the more developed jurisdictions where parole is used extensively to enable long term prisoners the opportunity to shorten the lengths of their sentences. This is an area that calls for considerable reform measures.

COMPULSORY SUPERVISORY ORDERS

Under Section 47, of the Prison’s Act, the Commissioner has the following powers;

(a) shall, in the case of a prisoner who, having been sentenced to imprisonment on not less than two previous occasions, is serving a sentence of imprisonment for a term not exceeding three years; and

(b) may in the case of any other prisoner where he considers it necessary or desirable in the interests of the rehabilitation of that prisoner to so do.

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Make an order, to be known as a compulsory supervision order, providing for the compulsory supervision of the prisoner for any period not exceeding one year.

The prescribed form is form 2 under the Act. It contains the details of the offender under supervision, with specifics of who the offender is to report to in any case.

Contravention of the supervision orders through the conviction for other offences, or failure to comply with the conditions of the order; results in the revocation of the order, and the Commissioner is empowered to issue a certificate to that effect. The said certificate is conclusive evidence of its contents.

If the offender is undergoing punishment for a subsequent offence, then he shall automatically serve a period of 3 months or the period for which he earned remission whichever is the greater.

Where such ex-prisoner is at large, the Commissioner shall present the revocation certificate to a magistrate who shall then issue a warrant of arrest. Upon arrest, the magistrate shall upon proper inquiry and on being satisfied that the person has been convicted of a subsequent offence or failed to comply with the supervision orders shall sentence for the term provided for above.

The Commissioner has powers to discharge a prisoner undergoing imprisonment for violation of the supervision orders, and can make further supervisory orders with regard to the same prisoner.

The Commissioner also has powers to vary the supervisory order whenever he considers it necessary to free a person under the order should be freed from liability therein.

PRESIDENTIAL PARDON

Under Section 27 of the Constitution powers are given to the president to pardon. This is what is usually referred to as the prerogative of mercy and it may be exercised in several forms;

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a. Pardon to a convicted person either conditionally or unconditionally

b. Grant a respite from the execution of a sentence or punishment either indefinitely or for a specific period

c. Substitute a less severe form of punishment.

Section 28 of the Constitution provides for an Advisory Committee to the president, but there recommendations are not binding on the president.

FINESThis is the most common type of punishment and it is usually meted out for minor offences. In some cases the Penal Code or the Statutes make specific provision for fines, together with the either the minimum or the maximum amounts, and in some cases they will specify whether it is to be additional or in substitution for imprisonment.

DISCHARGE

Under Section 35 of the Penal Code provision is made that where the court is of the opinion that having regard to the circumstances, including the nature of the offence and the character of the offender, that it is inexpedient to inflict punishment and further that a probation order is inappropriate, it may issue a discharge order. The discharge may be either conditional or absolute. Where it is conditional, then the condition should be that the offender will not commit another offence for a period not exceeding 12 months. Violation will lead to the court exercising its discretion on whether or not to sentence the offender for the original offence for which the discharge had been issued.

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COMPENSATION

This can be awarded to a person who has suffered material loss or personal injury in consequence of the offence by the accused. The courts are usually reluctant to award compensation in criminal cases especially in those cases where serious injury has been suffered, and proper and sufficient medical evidence may not have been adduced, and so the task is usually left to the civil process.

RESTITUTIONWhere there is any property involved in the cause of trial, at the end of the trial the court can make an order for the release of the property to the rightful owner.

COMMUNITY SERVICE ORDERS

These Orders came into effect with the enactment of the Community Service Orders Act, No 10 of 1998. It replaced the Extra Mural Penal Employment which was provided for under Section 68 of the Prison’s Act.

Background to the Orders

Whereas, the EMPE had been meant to reduce congestion in prisons and provide a mechanism for enabling rehabilitation of the offender within the community; there was a lot of dissatisfaction with its application and implementation. Under EMPE anyone who was liable for imprisonment for a term not exceeding 6 months could be placed on EMPE, each locality had designated EMPE centers which were invariably local administrative officers e.g. DO, and Chief’s officers as well as the courts themselves. The offenders were supervised by Prison’s officers, and they were meant to carry out work of a public nature. It was served between 8 am – 12 noon. Complaints against the systems included;

It did not lead to decongestion of Prisons, since the cut off of 6 months left out a lot of petty offenders

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It was misused by the administrators to service their own private works

Some of the work carried out was mundane and had no impact for public expenditure

The timing of when it could be served ran counter to the idea that one could serve and still continue working, i.e. there was no flexibility, so offenders would still loose their jobs as a result of carrying out the punishment

There was disquiet with the idea that whereas, this was intended to be a community based rehabilitation programme; supervision was carried out by uniformed personnel.

In response to the increasing numbers of prisoners and the deterioration of prison conditions, matters were made worse when a conference organized to discuss prison reforms was told by the then High Court Judge, Justice Emmanuel O’kubasu that being sent to a Kenyan Prison was equivalent to being awarded a death sentence, the Kenya Government set up a committee to look into EMPE and to make recommendations on Community Service Orders, in the same year, 1996. Justice O’Kubasu, was appointed chairman and the Committee gave its report including a model statute to the Attorney General in 1997.It is instructive that at this point and time Community Service Orders were already recognized as sentences in many commonwealth jurisdictions.

Section 3 of the Act provides as follows:

(1) Where any person is convicted of an offence punishable with-(a) imprisonment for a term not exceeding three years, with or without

the option of a fine; or(b) imprisonment for a term not exceeding three years but for which the

court determines a term of imprisonment for three years or less, with or without the option of a fine, to be appropriate.

The court may, subject to this Act, make a community service order requiring the offender to perform community service

2 (a) Community service shall comprise unpaid public work within a community, for the benefit of that community, for a period not

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exceeding the term of imprisonment for which the court would have sentenced the offender.

Types of work to be carried out; construction or maintenance of public roads or roads of access; afforestation works environmental conservation and enhancement works; projects for water conservation, management or distribution and

supply maintenance work in public schools, hospitals and other public

social service amenities work of any nature in a foster home or orphanage rendering specialist or professional services in the community

and for the benefit of the community

The court may require a report from a community service officer before making an order.

The court shall not make an order unless the offender is present in court, and there are adequate arrangements for the execution of the orderWhere a report exists, the court must be satisfied that the offender is a person suitable to perform community service.

The offender must consent to being placed on CSO.

IMPLEMENTATION

The Act creates a National Committee whose chairman is to be a Judge of the High Court appointed by the Chief JusticeMembers includeDPP or his nomineePS, Provincial Administration and Internal Security or his nomineePS, Public works or his nomineeCommissioner of Police or his nomineeCommissioner of Prisons or his nomineeDirector of ProbationDirector Children ServicesNominee Council of LSK

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Two persons with training and experience in the criminal justice system, one in teaching of the law, and the other a magistrate of first class, both to be appointed by the Chief JusticeFive members appointed by the Minister out of a list of 7 nominees by the National Committee, two of whom shall be representatives of NGOs involved in social welfare work registered under the NGO Co-ordination Act, National CoordinatorThe Committee has powers to co-opt not more than 3 persons whose assistance or advice it requires or considers necessary, in the discharge of its functions, for a period that they deem fit.

FUNTIONS OF THE NATIONAL COMMITTEE Advise the Minister and the Chief Justice generally on

the proper implementation of Act Coordinate, direct and supervise the work of the

community service officers Collect and collate data on the operation of this Act for

the purpose of improving the national policy on community service orders

Advise the Chief Justice on any need for enhanced application of the provisions relating to revision under the CPC so that the courts may make better use of the CSO in appropriate cases.

Section 11 makes provision for the establishment of district, divisional and locational community service order committees, by the Minister in consultation with the National Committee, by Order in Gazette.

Once on CSO, the offender is required

To report to the supervising officer specified in the order for assignment of work

Perform for the period specified in the order such works at such times and place as he may be instructed by the supervising officer

Report to the supervising officer any changes in address that may occur from time to time.

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CHALLENGES

These orders are yet to have the desired effect, prisons still complain of congestion, meanwhile the national committee keeps release huge figures of those supposedly under CSO.

These problems could be stemming from the fact that judicial officers are still treating CSO in the same manner that they treated EMPE, and there awarded them for very minor offenders as opposed to using the cut-off point of 3 years imprisonment.The sentence is meant to be awarded in hourly terms and yet there are no clear rules and table to assist judicial officers in determining how to march the envisaged prison sentence and the corresponding hours.

The provision for district, divisional and locational committees introduces a bureaucracy that does not exist in the judicial system, and yet the programme is meant to be judiciary driven. It would make more sense if the provision was made for mandatory committees in each magisterial station whose membership should largely reflect all the criminal justice players at the local level including the placement agencies benefiting from CSO to be represented.

Logistics should be put in place to ensure that data is continuously up dated and that relevant info such as the kind of offences, the periods which could have been served in prison and the amount of money that would have been used by the government in the up keep of each such offender forms part and parcel of such info. This will enable a better process for assessing the success and failure of the programme and a mechanism for proposing reforms.

There is very little public awareness that was created prior to and during the implementation of the programme and yet its success depends to a large extent on how receptive the public is towards it. This is especially so because this kind

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of sentence is meant to rehabilitate the offender within a communal set up.

The advantage of a properly run CSO programme lies in the fact that the public reaps benefits, they also have the opportunity to interact with the offender and through the local supervisory arrangements can make their sentiments known.

In some jurisdictions the issue of whether or not offenders on CSO has been discussed with varying degrees of acceptance. Those for it argue that it is important to publicly identify the offenders because that carries with it shame which would result in shame, in itself a deterrent factor. Those against argue that such public humiliation and shame goes against the very spirit of rehabilitation and causes stigmatization.

PROBATION OF OFFENDERS

This is also community based rehabilitation mechanism and is usually meted out to first offenders that by reason of age, circumstances of the offence warrant the sentence. The sentence is meant to run for a minimum of 6 months and maximum of 3 years.

No order of probation can be made without the report of a probation officer. A probation report is detailed summary of the circumstances under which the offence was committed, the offender’s personal circumstances, and the recommendation by the probation officer. The report is made through the interview of the offender, his family members, relevant community members, the victim of crime and any other persons that the probation officer may deem necessary. The main objective of the report should be to give the court a very clear picture of whether or not the offender is likely to benefit from probation and what social support systems exist to enable this to happen. The report is not binding on the court. The success of probation

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depends to a large extent on the availability of attendant services such as counseling and skills development for the offenders.

SENTENCING POLICY

Sentencing refers to the process of arriving at the punishment. The sentence must be suited to the offence committed. A sentence is therefore a judicial order directing that a specified form of punishment be inflicted on a convict. There are principles which govern sentencing. The principles are closely related to the objectives of punishment. They depend to a large extent on the philosophy and attitude of the bench, the nature and particular circumstances of the offence and the character of the offender.

In the first place the sentences meted out are limited to the Penal Code at Section 24. Further the court should only impose sentences that are within its jurisdiction. There are three key principles of sentencing:

Gravity of the offence The presence of mitigating factors; Equality or proportionality in awarding sentences

GRAVITY

The gravity of an offence refers to it’s harmfulness. It has already been noted that grading of offences according to gravity is primarily the work of the legislature and they do so by fixing the maximum sentences for specific offences. It is possible from especially with common offences to detect from judicial decisions 5 things that are considered to affect the gravity of offences.

Social dangerBattams (1979) 1 Cr App R 16

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Cantley J“It is often said, and rightly said, that there would not be so many thieves if there were no receivers. Professional thieves do not steal good merely for there own consumption; they steal them for disposal and it is essential to the success of criminality that there should be receivers, big receivers and small receivers, like this appellant who will dispose of their goods unobtrusively in various markets:”

In terms of deterrence therefore, it would appear from the above statement that it is more important to deter professional receivers than to deter professional thieves, in order to prevent theft.

This argument favours the general deterrence theory of punishment.

AlarmThis is in respect to the victims of the crime, so for example burglary is deemed to be more serious than common theft. Historically, burglary in the UK could only be committed in respect of dwelling houses at night. It was considered that such acts would therefore.

The Eighth Report of the Criminal Law Revision Committee at para 74

“With better street lighting in most places night is no longer so much more favourable than day to criminals, nor so much more frightening to householders than it was in the days when the distinction between burglary proper and housebreaking was drawn. Moreover in some places housebreakers choose a time in the morning when the housewife has to out and leave the house empty; and it is sometimes quite as upsetting and even frightening for a woman to find on her return that the house has been ransacked during her absence as it is to have her house burgled at night.”

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The same can be said of robbery or theft where weapons are carried, displayed or used against the victim, the sense of alarm is definitely higher, than an ordinary theft.

Social disapprovalThe maximum sentence provided by statute is sometimes a reflection of the social disapproval that goes with a particular offence. Lately in Kenya we have the example of defilement, which previously carried a maximum of 14 years, but after public outcry and pressure, it was increased to life imprisonment. In fact most sexual offences are rooted in social disapproval, as they usually go against social norms.

WickednessThis has to do with the willful factor including malice with regard to the offender; this implies the wicked intent of the offender, who is then viewed as more serious threat to the society, than an offender who unintentionally or in the heat of the moment commits a crime.

ProportionalityIn general, this would mean that taking offences generally the courts should with the use of statutory provisions be guided, by awarding sentences comparatively with what the highest awards are, i.e. offences that carry life imprisonment should be a factor, so that other offences that do not carry this should be awarded sentences that are below those normally awarded to the life carrying offences.

CIRCUMSTANCES OF THE OFFENCEMatters requiring

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